Supreme Court of India
LAKSHMI KANT PANDEYversusUNION OF INDIA
- Citation
- 1984 INSC 26
- Decided
- 6 February 1984
- Disposal
- Disposed off
- Bench
- P N BHAGWATI
Holding
Inter‑country adoption of Indian children by foreign parents is permissible only after domestic placement options are exhausted and subject to strict procedural safeguards as outlined by the Court.
Summary
The Supreme Court entertained a public‑interest writ petition filed by advocate Laxmi Kant Pandey, seeking to restrain private agencies from sending Indian children abroad for adoption and to direct the Union, the Indian Council of Social Welfare and the Indian Council of Child Welfare to fulfill their duties. Relying on the Constitution (Arts 15, 24, 39) and the Guardians and Wards Act, 1890, the Court held that inter‑country adoption may be permitted only after all reasonable efforts to place the child with an Indian family have failed. It laid down detailed procedural safeguards – applications must be sponsored by a recognised foreign‑country social/child‑welfare agency, accompanied by home‑study and child‑study reports, financial and medical disclosures, a power of attorney, and a bond for possible repatriation. The biological parents must be assisted, given a cooling‑off period, and their consent is not to be sought after relinquishment. The Government was directed to prepare a list of recognised agencies within six months and to circulate it to High Courts and foreign missions. The petition was disposed with these directions; no blanket prohibition on inter‑country adoption was imposed.
Issues considered
- The adequacy of the Guardians and Wards Act, 1890 for regulating inter‑country adoption of Indian children.
- Whether the Union and child‑welfare agencies can be restrained from facilitating adoption of Indian children by foreign parents.
- The procedural safeguards necessary to protect the welfare of children in inter‑country adoptions.
- Whether notice of guardianship applications should be given to biological parents or published in newspapers.
- The duty of the Government to prepare and disseminate a list of recognised social/child‑welfare agencies for inter‑country adoption.
Legislation cited
- Adoption of Children Bill, 1972 (proposed)
- Adoption of Children Bill, 1980 (proposed)
- Constitution of Indias. Art.15, s. Art.24, s. Art.39
- Guardians and Wards Act, 1890s. Sec.11, s. Sec.17, s. Sec.26, s. Sec.4, s. Sec.7, s. Sec.8, s. Sec.9
Subjects
inter‑country adoptionchild welfareguardianshipGuardians and Wards Actadoption by foreignersprocedural safeguardspublic interest litigationchild traffickingsocial welfare agenciesconstitutional child rights
Judgment
1 .
795
LAKSHMI KANT PANDEY A
v.
UNION OF )NDIA
February 6, 1984 B
[P. N. BHAGWATI, R. ·s. PATHAK AND AMARENDRA NATH SBN, JJ.]
Adoption of Children bY foreigners-Intra-national adoptions-Normative
and Procedurai safeguards to be insisted 'upon so far as a foreigner wishing to take
a child in adoption, outlined-Constit,;t;on of India, 1950 Artie/es 15,24 and 39 C
and Guardian and Wards Act (Act VIII of 1890), Section-~ 7 to.9 a1Jd ]].
The petitioner, an advocate of the Supreme Court addressed a letter in
public interest to the Court, complaining of mat-practices indulged in by social
· organiSation and vnlunhiry agencies engaged in the work of offering Indian
Children in adoption to foreign parents, the petitioner alleged that not only
Indian Children of tender age are under the guise of adoption "exposed to the
Jong horrendous journey to distant foreign countries at great risk to their ·lives
but in cases where they survive and where these children are not placed in the
shelter and Relief Houses, they in course of time become beggars or prostitutes
' for want of .proper ·care from their alleged fo&ter parents." The p~titi.oner,
accordingly, sought relief restraining Indian based private agencies ''from
carrying put further activity of routing children for adopticn abroad" and
directing the Government of India, the Indian Council of Child Welfare and the
E
Indian Council of Social Welfare to carry out their obligations in the· matter of
ador)tion of Indian Children by Foreign parents. Being a public interest litiga.
tion, the letter wa.s treated as a writ petition.
Disposing of the Writ Petition, after indicating· the principles and norms
to be observed in giving a Child in adoption to foreign p3.re~ts, the Court
F
HELD : 1 : I. Every child has a right to love and be loved and to
grow up in an atmosphere of love and affection and of moral and material
security and this is possible cnly if the child is brought up in a family. The
most congenial environment would, of cotlrse, be that of the family of his bio.
logic2't parents. But if for any reason it is not possible for the biolog'cal
parents or other near relative to look after the child or the child is abandoned
and it is either not possible to trace the parenrs or the parents .are not willin_g G
to take care cif the child, the next best alternative would be to·find adoptive
parents for the child so ihat the child can grow up unde'r the loving care and
attentiob of the adopthe :)arents. The adootive parents would be the next best
substitute fo~ the biological parents. [8J3E·F] ' '
1 : 2. When the parents of a child want to give it away in adoption or
the child is abandOned and it is considered necessary in the inte:est of the 9hild
H
796 StlPRl!MB COURT REPOFTS (1984) 2 S.C.R.
A to give it in adoption, every effort must be made first to find adoptive parents
fOr it within the country, because such adoP· ion would steer clear of any pro·
bJcms of assimilation of the child in the family of the adoptive parents which
migi.1t arise on account of cultural, racial ur linguistic diftCrences in case of
adoption of the child by foreign parents. If it is not possible to find
suitable adoptive parents for the child within the country, it may become
necessary to give the 'Child in adoption to foreign parents· rather than allow
B
the child to grow up in an orphanage or an institution where it will have no
family life and no love and affeciion of parents and quite often, in the socio-
economic conditions prevailing in the country, it might have to lead the life of
a destitute, half clad, half.hungry and sufferin5 from mal-nu1rition and
illness. [• '4B· DJ
2: I. The primary object of giving the child in adoption should be the
•
\
welfare of the child. Great care has to be exercised in permit ting the child to
c be given in adoption to foreign parents, lest_ the chi l.d may ·be neglected or
abandoned by tbe adoptive parenls in the foreign country or the adoptive
parents may n~t be able to provide to the child a life or moral or material
securi1y or the child may be subjected to moral or sexual abuse or forced labour
or e1;perimentation for meidcal or other research and n,ay be placed in a worse
situation than that in his own country. [i:ll~G-H; 8l6A]
D 2 : 2. Since there is no statutory enactment in our country providing for
adoption of a_ child by foreign parents or laying down the procedure which must
be followed in such a case, resort is had to the provbions of the Guardians and
Wards Act, 1890 for tl1e purpo!'e of facilitating such adoption. [8 ~4G]
2 : 3. The High Courts of Bombay, Delhi and Gujarat have laid down
E by Rules and Instructions certain procedure when a foreigner makes an applica-
tion for adoption under the Guardian and Wards Act including issuing of a
notice to the Indian Council of Social Welfare and other otllcially recognised
social welfare agencies with a view to assist the ClJUrl in properly and carefully
scrutinising the applications of the foreign parents for determining whether it
will be in the interest of the child and promotive of its welfare, 1 o be adopred
by ihe foreign parents making the application or in other words, whether such
F adoption will provide moral and material security to the child wi h an opportu~
nity to grow into the fu!I stature of its personality in an atmosphere of ll:ve and "
I
affection and warmth of a family he.,rth and home. This procedure is eminently
desirable and it can help considerably to reduce, if not e'iminate, the possibility
of the child being adopted by unsuitable or undesirable parents or being placed
in a family where it may be neglected, maltreated or exploited by the adoptive
parents. [828B-E] ·
G Rasik/al Chaganlal M~hta's case A.f.R. 1982 Gujarat 193, approved.
3 : i. The requirements which ~hould be insisted upon so far ali a
foreigner wishing to take a child in adoption and the procedure that should be
followed for the purpose of ensuring that such inter-country adopt;on'l do not
lead to abuse mal-treatment or exploitation of children and secure to them a
healthy, decent family life are as under :
(I) Every application from a foreigner desiring to adopt a child must.be
H
1..K., PANDEY i>. UNiON 797
sponsored bY. a social or child- welfare agency recognised or licensed by the A
governinent of the country in which the foreigner is resident. No application
by a foreigner tor taking a child in adoplioil should be entertained dircc ly by
any social or welfare ageilcy of India working in the area of inter· country
adoption or by any institution or centre or home to which children are com·
mitted by the juvenile court. This is essential primarily for three reasons.
. . . [8JIG-H]
Firstly. it will help to reduce, if not eliminate altogether, the possibility B
of profiteering and trafficking in children. because if a foreigner were
allowed to contact directly agencies or individuals in India for the purpose
of obtaining a child in adoption, he might, in his anxiety to sc;;cure a
child for adoption, -be induced or persuaded to pay any unconscionable
or unreasonable amount which might. be demanded by the agency o
individual procuring the child. Secondly it would be almost importsi·
blc for the court to satisfy itself that the foreigner who wishes to take c
the child in adoption would be suitable as a parent for the child and whether he
would be able to provide a stable and secure famiJy life to' the child- and would
be able ro hand!re trans·racial, trans.cultural and trans.national problems
likely to arise from such adoption, because where the application for adopting
a child _has not be~n sponsored by a social or child welfa1c agency in the country
of the foreigner, there would be no proper and salisfactory home study report
on which the court can rely. Thirdly, in such a case, wh~re the application of D
a foreigner for taking a child in adoption is made directly without the inter·
vention of a social or child welfare agency, 'there would be no authority or
agency in the country of, the foreigner wh9 could be made responsible fur super·
vising the progress of the child and ensuring that the child is adopted at the
earliest in accordance with law and grows up in an atmosphere of warmth and
affection ·with moral and material security assured to it. [832A-E]
Every application of a foreigner for taking a child in adoption must be E
accompanied by a borne study report and the ~ocial Or child welfare agency
spOosor in such appJ.cation should also send along with it a recent photograph
of the family, a marriage certificate of the foreir.ner and his or her spouse as
also a declaration concerning their health together with a certificate regarding
rheir medical fitness duly certified by a medical doctor, a declaration regarding
their financial Slatus alongwith supporting documents including employer's
certificate where applicable, incorlle-tax assessment orders, bank references and· F
particulars concerning the properties owned by them, and also a declaratiorl
stating that they are willing to be appoinied guardian of the child and an undei·
taking that they would adopt the child according to the law cf their country
within a period of not more than two years· from time of arrival of the child in
their country and give intimation of such adoption to 1he court appointing
them as guardian.as also to the social or child welfare agency in Jndia proces.
sing tbeir case, and that they would maintain the child and provide it necessary G
education and up· bringing according to their status and they would also send
to the court as also to the social or child welfare agency in lndi'a reports relat·
ing to the progress of the child alongwith its recent photograph, the fn.quency
of such progress reports being quarterly duriug the first two years and half
yearly for the next three years. The application of the foreigner must also be
accompanied by a Power of Attorney in favour of an Officer of the ~oci8I or
child welfare agency in India which is requested to process the case and such
H
798 SUPltEME COURT REPOltTS [1984) 2 S.C.R.
A
Power of Attorniy should authorise the Attorney to handle the case on behalf
of the . foreigner in ca.:;e the foreigner is not in a position to come to India.
The social or child welfare agency sponsoring the application of the foreigner
1nust also certify that the foreigner seeking to adopt a child is permitted to do
so according to the law of his country. These certificates, declarations and
documents must accompany the:' application of the foreigner for taking child in
B adoption, shouid be duly notarised by a Notary Public Whose signature should
be duly attested either by an Officer of the Ministry of External Affairs or
Justice or Social Welfare of the country of the foreigner or by an Officer of
the Indian Embassy or High Commission or Consulate in that country: The
social or child welfare agency sponsoring the applicatioh of the forcipner must
c
also undertake while forwarding the application to the social or child welfare
agency in India, that it will ensure adoption of the child by the foreigner
according to the law of his country within a period not exceeding two years
and as soon as the adoption is affected, it will send two ·certified} copies of '
-
1he adoption order to the social or child welfare agency in India through
which the application for guardianship is processc~. so that one c;;opy can be
filed in court and the 01her can remain with the social ol· child welfare agency
in India. The social or child welfare agency sponsoring the application must
also agree to send to the concerned social or child welfare agency in India
D Progress reports in regard to the child, Quarterly during the first year and half
yearly for the subsequent year nr years until the adotrtion is effected. and it
must also undertake that iri case of disruption of the family of the foreigner
before adoptiori can be effected, it wilt take care of the child and find a suitable
alternative placement for it with the approval of the concerned social or child
welfare agency in India and report such alternative placement to the .court
handling the guardianship proceedings and such information shall be passed
E on both by the court as also ·by the concerned social or child welfare agency
in India to the Secretary~ Ministry of Social Welfare, Government of India.
[8l3C-H; 834A-E]
3: 2. The Government of India shall Prepare a list of social or child
welfare agencies licensed· or recognised for inter-country adoption by lhe
Government of each foreign country where children from India are taken iri
adoption and this list shall be prepared after getting the necessary information
from the government of each such foreign country and the Indian Diplomatic
F Mission in that foreign country. Such lists shall be supplied by the Govern-
m;nt of India ·to the various High Courts in India as also to the social or child
welfare agencies operating in India in the area of inter-country adoption under
licence or recognition from the Government of IAdia. l8J4B F; [835 B]
3 : 3. If the biological parents are known, they should be helped to
under~tand all the implications of adoption including the possibility of adop-
G tion by a foreigner and they should be told specifically that in case the child
is adopted, it would not be posllible for them to have any further contact
with the ct>ild The biological parents should not be sujccted to any dure"ss io
making a decision about "relinquishment and cveo aftert hey have taken a deci~
sion to relinQuish the child f0r giving in adoption, a further period of abo"ut
threemonths should be allowed to them to reconsider their decision. But once
the decision is taken and riot reconsidered within such further time as may be
allowed to them, it must be regarded as irrevocable and the proc~ urc for
lI
L. IC PANDEY V. UNION 799
giving the child in adoption to a foreigner can then be initiated without any
A
further reference to the bi_ologica\ parents by fil(ng an application for appoint-
ment. of the foreigner as guardian of the child. Th:reafter there can be no
question of once again consulting the biological parents whether they wish· to
give· the cfiild in adoption or they want to take it back. But in order to elimi-
nare any possibility of mischief and to rriake sure that the child bas in fact
surrendered by its biological parents, i_t is necessary that the Institution
or Centre or home for Child Care or social or Child Welfare Agency to
B'
which the chiJd ·is surrendered _by 1he biological parents, should take fiom the
biological parents a document of surrender duly signed by the biological
parents and attested by at least two responsible persons nnd such document
of surrender should not only contain the names of the biological parents and
their address but also information in regard to the birth of the child and its
background, heaith and development. If the biological parents state a prefe- .
rence for· the religious upbringing of the child, their wish should as far as
possible be respected. but ultimately the interest of the child alone should be
c
the sole guiding factor and the biologic:il parents should be informed that the
child n1ay be given in adoption even to a foreigner who professes a religion
different from that of the biological parents. The biological parents ...should
not be induced or encouraged oi" even be permitted to take a decision in
re_gard to giving of a child in adoption before the birth cf a ch.ild or within
a period of three months fro1n the date of birth. This precaution is neces- D
sary because the biological parents must have reasonable time after 1he birth
of the chi id to take a ·decision whether to rear up the child themselves or to
relinquish it for adoption and mort·over it n1ay be necessary to allow some
time to the child to overcome any health problems experienced afcer: birth.
[835-H; 8!6A-D; 836G·H]
3: 4. It should nc.t be open to any and every agency or individual to
process an application from a foreigner for taking a child in adoption and such E
application .should be processed only through a social or child welfare agency
licensed or recognised by the Government 6f India or the Government of the
State in which it is operating. Since an application for appointment as
guardian can be processed onJy by a recognised social or child welfare agency
and no~e e!Se, any unrecognised institution, centre or agency w·hich has a
chilJ under its care would have to approach a. recognised social or child
welfare agency if it desires such child to be given in inter-countiy adoption,
and in that event it must send without any undue delay the name and must F
send without any undue delay the name and particulars of such child to the
recognised social or child welfare agency throu.gh which such child is proposed
to be giv~n in inter-country adoption. The Indian Council of Social Welfare
and the Indian Council for Child Welfare are clearly tWo social or Child welfare
agencies operating at the national le"vel and recognised by the Government
of Jndia. But apart from these two recogoh,ed social or child welfare agencies
functioning at the national level, there are other social 'or child welfare agencies G
engaged in child care and welfare and if they have goo·d standing and reputa·
tion and are doing . commendable work in the are of child care and welfare
they should also be recognised by the Government of India or the Governffient
of the State for the purpose of inter·country adoptions. 'But before taking a
decision to reconise any particular social or child weJfate agency for the pur-
pose ofinter-couritry adoptions the Government of India or the GOvemment
of a State would do well to examine whether the social Or child welfare agency
H
soo SUPREME COURT k.EPORTS [1984] 2 s.c.R.
A has proper staff with professional social work experience, because otherwise
it may not be possible for the social or child welfare agency to carry out satis- •
factorily the highly responsible task of ensuring proper placement of a ·child
with a foreign adoptive family. The Government of India or th c Govern-
ment of a State recognising any social or child welfare agency for inter-country
adoptions rnust insist as a condition of recognition that the social or child
welfare a.gency shall maintain proper accounts which shall be au.dited by a
B charte-red accountant at the end ·of every year and it shall not charge to the
foreigner wishing to adopt a child any amount in excess of that actually in-
curred by way of legal or other ex:pensrs in connection with the application
for appointment of guardian inclt!ding such reasonable remuneration or
honorarium for the work done al)d trouble taken in processing, filing and
l
pursuing the application as may be fi<ed by the Court .. [837B-H; 838A-D]
c 3 :- 5. Every recognised social or child welfare agency must maintain _a
register in which the names and particulars of all children proposed to be
given in inter-country adoption through it must be entered and in regard .to
each such child, the recognised social or child welfare agency must prepare a
child study report through a professional social worker t_.:iving all reJevent
information in regard to jhe child so as to help the foreigner to come to a
decision whether or not to adopt the child and to understar d the child, if he
D decides to adopt it as also to assist the court Jn coming to a decision whether
tb
it will be for the welfare of the child be given in adoption to the foreigner
wishing to adopt it. The child study report should contain as far as poss ble
information in regard to the folJowing matters :--
(l) Identifying information, supported where possible by documents.
E (2) Information about original parents, including their heaJth and details
of the mother's pregnancy and birth.
(3) Physical, intellectual and emotional development.
(4) Health report prepared by a registered medical practitioner prefera-
bly by a paediatrician.
F (5) Recent photograph.
(
(6) Present environment-category of care (Own home, foster home,
institution etc,) relationships routines and habits.
(7) Social worker's assessment and reasons for suggesting inter-country
adoption. [838G-H; 839A·E]
G 3 : 6. The recognised social or child welfare agency must insist upon
approval of a specific known child and once 1hat approval is obtained the
recognise:i ~ocial or child welfare agency should immediately without any
undue delay proceed to make an application for appointment of tlie foreigner
as guardian of the chiJd. Such application would have to be made in the
court within whose jurisdiction the child ordinarily resides and it must be
accompanied by copies of the home study report, the child study report and
H other certificates and documents forwarded by the social or child welfare agency
L. K, PANDBY v. UNION 801
sponsoring the application of the foreigner for taking lhe child in adoption.
A
It is also neces~ary that the recognised social or child welfare agency through
which an application of a foreigner for taking a chi1d in adOption is routed
must before offering a child in a'ctoption, m1ke sure that the child is free to be ·
adopted. The recagnised social or child welfare agency must place sufficient
material before .the court to 'satisfy it that the child is legally available for
adoption. It is also necessary that the recognised social or child welfare
agency must satisfy itself, firstly,~ th~t there is no impediment in the way of
B
the Child entering the country of the prospective adoptive parent; secondly.
that the travel documents for the child can be obtained at the appropriate iime
and lastly, that' the law of .the country of the prospective adoptive parent
permits legal adoption of the child and that on such legal adoption being
cOnciuded, the child would acquire the same legal status and rights of inberi·
tance as a natural born child and would be grarited citizenship ;n the country
of adoption and it should file alongwitb the application for guardianship, a
c
certificate reciting such satisfaction. [841C·D; 842H; 843A·D]
3 : 7. · In caaes where a child relinquished by its b1ological parents or
an orphan or destitu.tc or abandoned child is brought by an agency or indivi-
dual from one State to another, there should be no objection to a social or
child welfare agency. taking the cbiJd to another State, even it the objl!ct D
be to give it in adoption, provided there aro sufficient safeguards .to ensure that
such social· o_r child welfare agency does not indulge in any mal·practicc.
There should also be no difficulty to apply for guardianship of the child in
the court of the latter State. because the child not having any permanent
place of residence would then be ordi0ari1y resident in the place where it
is in the care and custody of such aiency or individual. [8~3H; 844A-F]
E
Section 11 of the Guardians and Wards Act, 1890 provides for notice
of the application to be issued to various persons incl.uding the parents of the
child if they are residing in any State to which the Act extends. But, no notice
under this section ·should be issued to the biological parents of the child,
since it would create considerable amount of embarrassment and hardship if
the biological parents were 1hen to come forward and oppose the application
of the prospective adoptive parent for guardianship of the child. Moreover, F
the biological parents would then come to know who is the person taking the
child in adoption and with this knowledge they would at any time be able to
trace the whereabouts of the child and they may try to contact tl'le child
resulting in emo1ional and psychological disturbance for the child which might
affect his future happiness. for the same reasons, ·notice of the application
for guardianship should also not be puplished in an); newspaper.· It. the court
is satisfied, after giving notice of the application to the Indian Council of
Child welfare or the Indian Council for Social Welfare or any of its branches G
for scrutiny of the application, that it will be for the welfare of.the child to be
give io adoption to the foreigner making the application for guardianship, it
will only then make an order appointing the foreigner as guardian of the child
and permitting him to remove ihe child to his own Country with a vie~ to
eventual adoption. The Court will introduce the following conditions in the
order, namely : [846A:H; 848A·B]
(i) That ~be forei$DCf wllo is ~poointcd l?uardfan shal! make proper .H
802 SUPREME COURT REPORTS (1984] 2 S;C.R.
A provision by way of deposit or bond or otherwise to enable the child
to be repatriated to lndia should it become necessary for any· reason.
[847C]
(ii) That 1he foreigner who is appointed guardian shall submit to the
court as ~ilso to the Social or Child Welfare Agency processing the
application for guardi?nship, progress repOrts of the child along
with a recent photograph quarterly during the first two years and
B half yea.rly for the aext throe years. [8470]
(iii) The order appointing gu :rdian shall carry, atta<;hed to .it, a photo-
grarh of the child duly counter-signed by av officer of the court.
[847F]
Where an order appointing guardian of a child is made by the court,
immediate intimation of the same shall be given to the Ministry of Social Wei·
c fare; Govcrnmeni of lndi~ as alsO to the Ministry of Social Welfare of the
Governmen of the State in which the court is situate and copies of such order
sha11 also be forwarded to the two resnective Ministries of Social Welfare. The
Minis1rr of Social Welfare, Government of fr dia shall maintain a register
containing names and other particulars of the children in respect of whom
orders for appointment of guardian have been made as also names, addressea
and other particulars of the prospective adoptive parents who have been
D appointed such guardians· and .who have been permitted to take away the
children for the pufpose of adoption. · The Govt. of India will also sent to the
Indian Embassy or High Commission in the country of «he pirospective adoptive
parents from time to time the names, addresses an~ ·other particulars of such
. prospective adoptive parents together with particulars of the children taken by
them and requesting the Embassy or High Commission to maintain and unob-
trusive watch over the welfare and progress of such children in order to safe.
E guard against any possible mal-treatment exploitation or use for ulterior
purposes and: to immediately report and instance of rnaJ.treatment, negligence
or ~xploitation to the Government of India for suitable action. 1
.. . [8470-H; 848A-C]
3 : s. The social or child welfare agency which is looking after the
child selected by a prospective adoptive parent, may legitimately receive from
such prospective adoptive parent maintenance expenses at a rate of not exceed·
F ini;i: Rs 60 per day (this outer limit being subjective to revision by the Ministry
of Social Welfare, Government of India from time to time) from the date of
selection of the child by him until the date the child leaves for going to is new
home as also medical rxoense1 including hospitalisation charges, any, actually
incurred by such social or child welfare agency for the child. But the claim
for payment of .such maintenance charges and medical exp~nses shall be Sub-
mitted to the prospective adoptive parent. [842C-D]
G 3 : 9. Jf a child is to be given in inter.country adoption, it would be
desirable that it is given in such adoption as far as possible before it complete~
the age of 3 years.· The reason is that if a child is adopted before it attains
the ag'! of understanding, it is always easier for it to get assimilated and inte·
grated in the new environment in which it may find itself on being adopted by a
foreign parent. Children above the age of 3 years may also be given in
inter-country adoption There can be·no hard and fast rule in this connec..
tion. Even children between the ages of. 3 to 7 years may be able to assimilate
~~~mselves in tl:~.e new s1:1rroundings witho~t any difficult~. Even f?hildre~
L, K. PANDEY v. UNION (Bhagwati, J.) 803
above the age of seven years may be giveb in inter·country adoption but theit
wishes may be ascertained if they are in a position to indicate any preference.
' [845D·G)
3: 10. The proceedings on the Application for guardianship should be
. held by the Court in camera and they should be regarded as confidential and
as soon as an order is made on the application for guardianship the entire
proceedings including the papers and documents should be sealed. [84IC-D]
B
3: ll. The. social or child welfare agency which is looki11g after the
child selected by a pro!lpeCtive adoptive parent, may legitimately receive from
such prospective adoptive parent mainte~ance expenses at a rate of not excecd-
ind Rs. 60 per day (this outer limit b:!ing subject to revision by the Ministry
of Social Welfare, Government of India. fro01.. time to time) from the date of
setection Of the child by him until the· date the child leaves for going to its
new horiie as also medical expenses including hospitalisation charges, if any, c
actually incurred by sui:h social or child welfare agency for the child. But the
claim for payment of such maintenance charges and ~edical expenses shall be
submitted to .the prospective adoptive parent through the recognised social or
child welfare agency which bas processed the application for guardianshiP and
payfnent _in respect of such claim shall not be,_p.:ceivcd direclly by the social or
child welfare agenc.y making ·the claim but shall be paid only through the
recognised social or child welfare agency. However, a foreigner may make D
voluntary donatiOn to any social or child welfare agency bui no su'ch dona·
tion from a prospective adoptive parents shall be received until after the child
has reached the country of its prospective adoptive parent, [842C·G] ·
ORIGINAL JURISDICTION Writ Petition (CRL) No. 1171 of
1982.
E·
Under article 32 of the Constitution of India.
... Petitioner in person .
FOR THE RESPONDENTS : F
Miss A. Subhashini for Union of India and Ministry of Social
Welfare.
Miss Kamini Jaiswal for, Indian Council of Social Welfare.
J.B. Dadachanji & Co. for Indian Council of Child Welfare
G
and Swedish Embassy.
Dr. N. M. Ghatate for all God's Children Inc. Arizone,
U.S.A.
P.H.' Parekh for Maharashtra· State Women's Council of
Child Welfare, Bombay and for Enfants de-L'espoir. Hi.
804 SUPREME COURT REPORTS (1984] 2 S.C.R.
A P.K. Chakeravorty for Legal Aid Service, West Bengal.
Mrs. Manik Karanjawa/a for Indian Associations for Promo-
tion of Adoption ..
Mrs Urmila Kapur for SOS Children's Village of India.
B
Kai/ash Vasdev for Missionary of Charity, Calcutta.
Ba/dev Raj Respondent in person.
G.M. Coelho Bar at Law for Enfant's du Mande (France)
c
Miss Rani Jethama/ani for Kuanyin Charitable Trust.
B.M. Bageria for Terre Des Hommes (India) Society.
Sukumar Ghose for Mission of Hope (India) Society, Calcutta.
D
S.K. Mehta . for Netherlands Inter Country Child Welfare
Oraganisation.
Parijot Sinha for society for International Child Welfare.
E Kai/ash Vasdev for Bhavishys.
The Judgment of the Court was delivered by ;::
BHAGWATI, J. This writ petition has been. initiated on the
basis of a letter addressed by one Lax mi Kant Pandey, an advocate
F practising in this Court, complaining of mat-practices indulged in
by social organisations and voluntary agencies engaged in the work
of offering Indian children in adoption to foreign parents. The
letter referred to a press report based. on "empirical investigation
carried out by the staff of a reputed foreign magazine" called "The
Mail" and alleged that not only Indian children of tender age are
under the guise of adoption ''exposed to the long horrendous journey '
G to distant foreign countries at great risk to their lives but in cases
where they survive and where these children are not placed in the
Shelter and Relief Homes, they in course of time become beggars
or prostitutes for want of proper care from their alleged foreign
foster parents." The petitioner accordingly sought relief restraining
Indian based private agencies "from carrying out further activity of
routing children for adoption abroad" and directing the Govern-
L.K. PANDBY v. UNION (Bhagwati, J.) 805
'· ·.~
ment oflndia, the Indian Council of Child Welfare and the Indian
Council of Social _Welfare to carry. out their obligations in the
matter of adoption of Indian children by foreign parents. This letter
was treated as a writ petition and by an Order dated 1st September,
1982 the Court issued notice to the Union of India the Indian
Council of Child Welfare and the Indian Council of Social Welfare
to appear in answer to the writ petition and assist the Court in lay- B
ing down principles and norms which should be followed in determin•
ing whether a ehild should be allowed to be adopted by foreilin
parents and if so, the procedure to be followed for that purpose,
with the object of ensuring the welfare of the child.
The Indian Council of Social Welfare was the first to file its C.l
written submissions in response to the notice issued by the Clouft
and its· written submission ij.led on 30th September, 1982 not only
carried considerable useful material bearing on the question of
adoption of Indian children by foreign parents but also contained.
· various suggestions and recommendations for consideration by the
Court in formulating principles and norms for permitting such .D
adoptions and laying down the procedure for that purpose. We
shall have occasion to refer to this large material placed before us
as also. to discuss the various suggestions. and recommendations
made in the written ·submission by the Indian Council of Social
Welfare when we take up for coesideration the various issues arising
.. in the writ petition. Suffice it to state for the present that the written
submission of the Indian Council of Social Welfare is a well thought
out document dealing comprehensively with various aspects of the
problem in its mani-fold dimensions. When the writ petition reached
hearing before the Court on 12th October, 1982 the only writt~n
E
1·
submission filed was that tlt_e Indian Council of Social Welfare and
neither the Union of India nor the Indian Council of Child Welfare F
-~ had made any response to the notice issued by the Court. But there
was a telegram received from a Swedish Organisation called 'Barnen
Framfoer Allt Adoptioner" intimating to the Court that this Orga-
nisation desired to participate in the hearing of the writ petition and
to present proper material before the Court. S .O.S, Children's
Villages of India also appeared through their counsel Mrs. Urmila
Kapoor and applied for being allowed to intervene at the hearing
of the writ petition so that they could made their submissions on
the question of adoption of Indian Children by foreign parents.
Since S.O.S. Children's Villages of India is admittedly an organi-
sation concerned with welfare of children, the Court, by an Order
dated 12th October, 1982, allowed them tq intervene and to· ma!<e .l
·H
806 SUPREME COURT REPORTS [1984) 2 S.C.ll.
A their submissions before the Court. The Court also by the same
Order directed that the Registry may address a communication to
Barnen Framfoer Allt Adoptioner informing them about the ad·
journed date of hearing of the writ petition and stating that if they'
wished to present any material and make their submissions, they.
could do so by filing an affidavit before the adjourned date of hear-
B iJ;g: The Court also directed the Union of ~ndia to furnish before
the next hearing of the writ petition the names of "any Indian lnsti~
tutions or Organisations other than ·the Indian Council or'Sociai
Welfare and the Indian Council of Child Welfare, which are engai-
ed or involved in offering Indian children for adoption by foreign
parents" and observed that if the Union of India does not have this
c information, they should gather the requisite information so far as
'.) it is possible for them to do so and to make it available to the Court.
The Court also issued a similar direction to the Indian Council oi'
Child Welfare, Indian Council of Social Welfare and S.O.S.
Children's Villages of India. There was also a further direciion
given in the same Order to the Union of India, the Indian Council
D of Child Welfare, the Indian Council of Social Welfare and the
(J S.O.S. Children's Villages of India "to supply to the C.ourt informa-
tion in regard to the mmes and particulars of any foreign agencies
which· are engaged in the work of finding Indian children for adop0
tion for foreign parenis". The writ petition was adjourned to 9th
November, 1982· for enabling the parties to carry out these
E directions. ··
F
It appears that the Indian Council of Social Welfare thereafter
in compliance with the directions given by the Court, filed copies of
the Adoption of Children Bill, 1972 and the adoption of Children,
Bill 1980. The adoption of Children Bill, 1972 was introduced in
the Rajya Sabha sometime in 1972 but it was subsquently dropped;
-
•, presumably because of the opposition of the Muslims stemning from
the fact that it was intended to provide for a uniform law of
adoption applicable to all communities including the Muslims. It is
a little difficult to appreciate why the Muslims should have opposed
this Bill which merely empowered a Muslim to adopt if he so
G· wished; it had no compulsive force requiring ·a Muslim to act
~-'
contrary to his religious tenets : it was merely an enabling legis·
lation and if a Muslim felt that it was contrary to his religion to
adopt, he was free not to adopt. But in view of the rather strong
sentiments expressed by the members of the Muslim Community
and with a view not to offend their religfous susceptibilities, the
H Adoption of Children Bill, 1980 which was introduced in the Lok
!'
I
L.K. PANDEY v. ENION (Bhagwati, J.) 807
Sabha eight years later on 16th December, 1980, contained an ex· A
press provision that it shai( not be applicable to Muslims. Apart
from this change in its coverage the Adoption of Children Bill, 1980
was substantially in the same terms as the Adoption of Children
Bill, 1972. The Adoption of'Children Bill 1980 has unfortunatety
not·yet been enacted into law but it would be useful to notice some
of the relevant provisions of this Bill in so far as they indicate what. •3' B
principles and norms the Central Government regarded as neceSliary
to be observed for securing the welfare of children sought to be
given in adoption to foreign parents and what procedural safeguards
the Central· Government- thought, were essential for securing this
end. Clauses 23 <tn.d 24 of the Adoption of Children Bill, 1980
dealt with the problem of adoption of Indian children by parents '.)C
domiciled. abroad and, in so far as material, they provided· iis
follows :
.-. " "23 (1) Except antler the authority of an order under
section 24; it shall no_t be lawful for any person to take or
send out of India a child who is a citizen of India · to any (])
place outside India with a view to the adoption of the child
by any person.
(2) Any person who takes. or sends a child out .of
India to any place outside India in contravention of sub- ·r
section (l) or makes or takes part in any arrangements for '.IJ:
transferring the care and custody of a child to any person ·
for that purpose shall lie punishable with imprisonment for "
a term which may extend to six months or with fine, or '
with both. .1
(24) (I) If upon an application made by a person
who is not domiciled in India, the district court is satisfied
that the applicant intends to adopt a child.under the law of ...
or within the country in which he is domiciled, and for
that purpose desires to remove the child from India either
immediately or after an interval, the court may make an
order (in this section referred to as a provisional adoption
order) authorising the applicant to remove the child for
tl!e purpose aforesaid and giving to the applicant the care
and· custody of the child pending his adoption as afore-
said:
Provided that '!0 application shall be entertained
~08 SUPRBMB COURT RBPORTS [1984] 2 s.c.a
unless it ·is accompanied by a certificate by the Central
Government to the effect that-
(i) the applicant is in its opinion a fit person to adopt
the child ;
(ii) the welfare and interests of the child shali be safe-
guarded under the law of the country of domicile of the
applicant;
(iii) the appliaant has made proper provision by way
of deposit or bond or otherwise in accordance with the
rules made under this Act to enable . the ·child to be re-
· patriated to India, should it become necessary for any
reason.
(2) The provisions of this Act relating to an adoption
order shall, as far as may be; apply in relation to a pro-
visional adoption order made under this section.
The other caluses of the Adoption of Children Bill, 1980 were
$Ought to· be made applicable in relation to a provisional adoption
order by reason of sub-clause (3) of clause 24. The net effect of
this provision, if the Bill were enacted into law, would be that in
:·1 view of clause 17 no institution or organisation can make any
-
arrangement for the adoption of an Indian child by foreign parents
unless such institution or organisation is licensed as a social welfare
Institution and under Clause 21, it would be unlawful to make or
to give to any person any payment or reward for or in consideration
of the grant by that person of any eonsent required in connection
f with the adoption of a child or the transfer by that person of the
care and custody of such child with a view to its adoption or the
making by that person of any arrangements for such adoption.
Moreover, in view of Clause 8, no provisional adoption order can
be made in respect of an Indian child except with the consent of
tile parent or guardian of such child and if such child is in the care
·G of an institution, except with the C0nsent of the institution given on
its behalf by all the persons entrusted with or in charge of its
management, but the District Court can dispense with such consent
if it is satisfied that the person whose consent is to be dispensed
with has abandoned, neglected or persistently ill-treated the child 0
or has persistently failed without reasonable cause to discharge his
. ; !)bligation as parent or guardian or can not be found or is incapable
B of giving consent or is withholdin~ consent unreuonably. When a
l..11:. :PANDEY v. UNION (Bhagwati, J.) ' 809
provisional adoption order is made by the District Court ou the A
application of a per son domiciled abroad, such persou would be
entitled to obtain the care and custody of the child in respect of
which the order is made and to remove such child for the purpose of
adopting it under the law or within the. country in which he is
domiciled .. These provisions in the Adoption of Children Bill, 1980
will have to be borne in mind when we formulate the guidelines B
which must be observed in permitting an Indian child to be given in
adoption to foreign parents. Besides filing copies of the Adoption
of Children Bill, 1972 and the Adoption of Children Bill, 1980 the
· Indian Council of Social Welfare also filed two lists, one list giving
names and particulars of recognised agencies in foreign countries
engaged in facilitating procurement of children from other countries c
for adoption in their own respective countries and the other list
c6ntaining names and particulars of institutions arid organisations
in India engaged in the work of offering and placing Indian children
for adoption by foreign parents.
The Writ Petition thereafter came up for hearing on 9th · D
November, 1982 when several applications were made by various <I
institutions and organisations for intervention at the hearing of the
writ petition. Since the questions arising in the writ petitio'n were
of national importance, the Court thought that it would be desirable
to have assistance from whatever legitimate source it. might come
and accordingly, by an order dated 9th November, 1982·, the Court
- granted permission to eight specified institutions or organisations
to file affidavits or statements placing relevant material before the ·
Court in regard to the question of adoption of Indian children by
foreign parents and directed that such affidavits or statements should
be filed on or before 27th November, 1982. The Court also. ·issued
notice of the writ petition to the State of West Bengal directing it r.
to file its affidavit or statement on or before the same date. The
Court also directed the Superintendent of Tees Hazari courts to
produce at the next hearing of the writ petition quarterly reports in
regard to the orders made under the Guardian and Wards Act , 1890
.entrusting care and custody of Indian children to foreign parents
during the period of five years immediately prior to 1st October,
1982. Since the Union of India had not yet filed its affidavit or .
statement setting out what was the attitude adopted by it in regard
to this question, the Court directed the Union of India to file its
affidavit or statement within the same time as the others. The·
Court then adjourned the hearing of the writ petition to 1st December
'1982 in order that the record may be completed by that time. H
810 SUPREME COURT REPORTS [1984] 2 s.o.il.
Pursuant to these directions given by the Court, various affi-
davits and statements were filed on behalf of the Indian Council of
Social Welfare, Enfants Du Monde, Missionaries of Charity, En·
fants De L's Espoir, Indian Association for promotion of Adoption
Kuan-yin Charitable Trust, Terre Des Homes (India) Society; Maha-
rashtra- State Women's Council, Legal Aid Services West Bengal,
B SOS Children's Villages of India, Bhavishya International Union.
for Child Welfare and the Union of India. These affidayits and
statements placed before the Court a wealth of material. bearing ,
upon the question of adoption of Indian children by foreign parents 1
and made valuable suggestions and recommendations for the consi- ,
deration of the Court. These affidavits and statements were supple-.
c mented by elaborate oral arguments which explored every facet of
the question, involving not .only legal but also sociological consi-
_rm ..
derations. We are indeed grateful to the various participants in_,
this inquiry and to their counsel for the very able assistance rendered,,
by them in helping us to formulate principles and norms which
{ ' should be observed in giving Indian children in adoption to foreign
D
• parents and the procedure that should be followed for the purpose.
of ensuring that such inter-country adoptions do not lead to abuse )
maltreatment or exploitation of children and secure to them a
healthy, decent family life. '• ·, I
• '!':
It is obvious that in a civilized society the importance of child
E welfare cannot be over-emphasized, because the welfare of the entire~
community, its growth and development, depend on the health and"
well-being of its children. Children are a "supremely importani
national asset" and the future well being of the nation depends·
on how its children grow and develop. The great poet Milton ,
put it admirably when he said : "Child _shows the man a~
F morning shows the .day" and the Study . Team on Social Wel-
fare said much to the same effect when it observed that "the
physical.· and mental health oflhe nation is determined largely by..
the manner in which it is shaped in the early stages". The child iS ·
a soul with a being, a nature and capacities of its own, who must lie
' helped to find them, to grow into their maturity, into fulness of'
G physical and vital energy and the utmost breadth, depth and height
of its emotional, intellectual and spiritual being; orherwise there
cannot be a healthy growth of the nation. Now obviously children
need ·special protection because of their tender age and physique
mental immaturity and incapacity to look-after themselves. That
·is why therr is a growing realisation in every part of the globe that
H children must be brought up in an atmosphere of love and affection
i:;.K.· PANDEY v. UNION (Bhagwati, J.) 811
and under the tender care and attention of parents so that they may A
be able to attain full emotional, intellectual and spiritual stability
' and maturity and ecquire self-confidence and self-respect and a
balanced view of life with full appreciation and realisation of the
role which they have to play in the nation buildit1g process without
which· the nation cannot develop and attain real prosperity because
a large segment of the society would then be left out of the develop- B
mental process. In India this consciousness is reflected in the pro-
visions enacted in tl1e Constitution. Clause (3) of Article 15 enables
the State .to make special provisio~s inter alia for children and
Article 24 ·provides that no child below the age of fourteen ·years
shall be employed to work in any factory or mine or engaged in
any other hazardous employment. Clauses (e) and (f) of Article 39 · c
provide that the State shall direct its policy towards securing inter
alia that the tender age of children is not abused, that citizens are
not forced by economic necessity to enter avocations unsuited to
their age and. strength and that children are given facility to develop
in a healthy manner and in conditions of freedom and dignity and
that childhood and youth are protected against exploitation and D
against tnoral and material abandonment. These constitutional pro-
visions reflect the great anxiety of the constitution makers to protect.
and safeguard the .interest. and welfare of children in the count~y.
The Government of India has also in pursuance of these constitu-
tional provisions evolved a· National Policy for the Welfare of
Children. This Policy starts with a goal-oriented preambula!ory E
introduction : ·
"The nation's children are a supremely important
asset. Their nurture and solicitude are our responsibility.'
Children's programme should find a prominent part in our
national plans for the development of human resources, so
that our children grow up to become robust citizens, physi-
cally fit, mentally alert and morally healthy, endowed with
the skills and motivations needed by society. Equal oppor-
. tunities for ·development to all children during the period
of growth should be our aim, for this would serve our
larger purpose ofreducing inequality and ensuring social G
( justice."
The National Policy sets out the measures which the Govern-
men.t of India proposes to adopt towards attainment of the objectives
set out in the preamoulatory introduction and they include measures
•r
designed to protect children against neglect, cruelty and exploitation H
812 SUPRBME COURT REPORtS (1984j 2 s.c.ll:
A' and to strengthen family ties "so that full potentialities of growth
of children are realised within the normal family neighbourhood and
community environment." The National Policy also lays down
priority in programme formation and it gives fairly hlgh priority to
maintenance, education and training of orphan and destitute children.
There is also provision made in the National Policy for const_itution
B of a Natioual Children's Board and pursuant to this provision, the
Government of India has Constituted the National Children's Board
with the Prime Minister as the chair person. It is the function of
the National Children's Board to provide a focus for planning and
·review and proper coordination of the multiplicity o{ services striv-
ing to meet the needs of children and to ensure at different levels
C continuous planning, review and coordination of all the essential
services. The National Policy also stresses the vital tole which the
voluntary organisations have to play in the field of education, health
recreation and social welfare srrvices for chlldren and declares that
it shall be the endeavour of State to encourage and strengthen such +
voluntary organisations.
D
There bas been equally great concern for the welfare of child-
ren at ·the international level culminating in the Declaration of the
Rights of the Child adopted by the General Assembly of the United
Nations on 20th November, 1959. The Declaration in its Preamble
points out that "the child, by reason of his physical and mental
E immaturity, needs special safeguards and care, including appropriate.
legal protection, before as well as after birth", and that "mankind.
owes to the child the best it bas to give" and proceeds to formulate
several Principles of which the following are material for our present
purpose:
F "PRINCIPLE 2 : The child shall enjoy special protec-
tion and shall be given opportunities and facilities by law and
by. other means, to enable him to develop physically mental
ly morally, spiritually and socially in a healthy and normal
manner and in conditions of freedom and dignity. In the'
enactment of laws for this purpose the best interests of the
G child shall be the paramount consideration."
PRINCIPLE 3 : The cliild shall be entitled from his
birth to a name and a nationality.
PRINCIPLE 6 : The Child, for the full and harmoni- ··7
ous development of hls personality, needs love and under- .
.'
Lit, p ANDBY v. UNION (iJhagwati, J.) ill~
standing. He shall, wherever possible, grow up in the care Af __
and under the responsibility of his parents, ~nd in any case
ln an atmosphere of affection and of moral and material
security; a child of tender years shall not, save in exceptio-
nal circumstances, be seperated from his mother. Society
· and the public· authorities shall have t.he duty to extend
particular care to children without a family and to those
without adequate means of support. Payment of State and
other assistance towards the maintenance of children of
large families is desirable.
B
PRINCIPLE 9 : The child shall be protected against
all forms of_neglect, cruelty and exploitation. He shall not
be. the subject of traffic, in any form.
PRINCIPLE 10 : The child shall be protected from
practices which may foster racial, religious and any other c
form of discrimination. He shall be brought up. in a spirit
of understanding, tolerance friendship among peoples,
peace and universal brotherhood and in full consciousness
that his energy and'talents should be devoted to the service
of his fellow men."
D
Every child hos a right to love and be loved and to grow Up in an
atmosphere of love and affection and of moral and material security
and this is possible only if the child is brought up in a family. The
mosl congenial environment would, of course, be that of the family
of his biological· parents. But if for any reason it is not possible
for the biological parents or other near relative to look after . the
child or the child is abandoned and it is either not possible to trace
the parents or :the parents are not willing to take care of the child,
the next best alternative would be to find adoptive parents for the F '''
child so that the child can grow up under the loving care and atten•
tion of the adoptive parents. The adoptive parents would be the .
next best substitute for the biological parents. The practice of:
adoption has been prevalent in Hindu Society for centuries and it is
recognised by Hindu Law, but in a large number of other countries
it· .is of comparatively recent origin while in the muslim countries it
is totally unknown. Amongst Hindus, it is not merely ancient Hindu
4w which recognises the practice of adoption but it has also be.en
legislatively recognised in the Hindu Adoption and Maintenance
Act, 1956. The Adoption of Children Bill 1972 sought to provide
for· a uniform law of adoption applicable to all communities includ-
814 : UPREME COURT REPORTS [1984] !2 s.c.il.
A ing the muslims but, as pointed out above, it was dropped owing to
the strong opposition of the muslim community. The Adoption of
Children Bill, 1980 is now pending in Parliament and if enacted, it
will provide a uniform law of adoption applicable to alt communities
in India excluding the muslim community. Now when the parents
. of a ?hild want to give it away in adoption or the child is abandoned
B and it is considered necessary in the interest of the child to give it
in adoption, every effort must be made first to find adoptive parents
for it within the country, because such adoption would steer clear
of any problems of assimilation of the child in the family of the
c
adoptive parents which might ari1e on .account of cultural, racial or
linguistic differences in case of adoption of the child by foreign
parents. If it is not possible to find suitable adoptive parents for
the child within the country, it may become necessary to give the
child in adoption to foreign parents rather than allow the child to
1
grow up in an orphanage or an institution where it will have no +
family life and no love and affection of parents and quite often, in
the socio·economic conditions prevailing in the country, it might
D have to lead the life of a destitute, half clad, half· hungry and suffer-
ing from mal-nutrition and illness. Paul Harrison a free-lance
journalist working for several U.N. Agencies including the Inter-
national Year of the Child Secretariat points out that most third
world children suffer "because of their colintry's Jack of resources
fo' development as well as pronounced inequalitie' in the way avail-
E able resources are distributed" and they face a situation of absolute
material deprivation. He proceeds to say that for quite a large.
number of children in the rural areas, "poverty and lack of edu-
cation of their parents, combined with little or no access to essential
services of health, sanitation and education, prevent the realisation
of iheir full human potential making them more .likely to grow up
F uneducated, unskilled and unproductive" and their life is blighted ·
by malnutration, lack of health care and disease and illness caused
by starvation, in1pure water alld poor sanitation. What Paul Harri-
son has said about children of the third world applies to children in
India and if it is not possible to provide to them in India decent
family life where they can grow up under the loving care and atten·
G,
tion of parents and enjoy the basic necessities of life such as nutri-
tive food, health care and education and lead a life of basic human
digi:tity with stability and security, moral as well as material, there
is no reason why such children should not be allowed to be given
H • in adoption to foreign parents. Such adoption would be quite con-
sistent with our National Policy on· Children because it would
.,
L;it, PANDEd v. UNION (Bhagwati, J.) 815
provide an opportunity to children, otherwise destitute, neglected A >.
or .abandoned, to lead a healthy decent life, without privation and
suffering arising. from poverty, ignorance, mal-nutrition and lack of
· sanitation and free from neglect and exploitatio~, where they would
be . able to realise "full potential of growth". But of course . as we ...
said above, every effort must be made first to see if the child can fl
be rehabilitated by adoption within. the country and if that is not B
possible, then only adoption by foreign parents, or as it is some
ti.1ne called 'inter country adoption' should be acceptable. This
ptinciple stems from the fact th.at inter country adoption may in-.i
valve trans-racial, trans-cultural and trans-national aspects which.
would not arise in case of adoption within the country and the fi~st - ".:\
alternative should therefore always be to find adoptive parents for . C
the child within the country. In fact, the Draft Guidelines of Pro-
cedures Concerning Inter-Country Adoption formulated at the
International Council of Social Welfare . Regional Conference of
Asia aud Western Pacific held in Bombay in 1981 and approved .at
the Workshop on Inter Country Adoption held in Brighton, U.K. il
on 4th September, 1982, recognise the validity of this principle in D
clause 3.1 which provides: "Before'any plans are considered for a
child to be adopted by a foreigner, the appropriate authority or
agency shall consider all alternatives for permanent family care
within tbe child's own country". Where, however, it is not possi-
ble to find placem 'nt for the child in an adoptive family within the
country, we do not see anything wrong if : a home is provided to E
the child with an adoptive family in a foreign country. The Govern-
ment of India also in the affidavit filed on its behalf by Miss B.
· Sennapati Programme Officer in . the Ministry of Social Welfare
seems to approve of inter-country adoption for Indian children· and 1
the proceedings of the Workshop on Inter Country Adoption held in
Brighton, ·u.K. on 4th September, 1982 clearly· show that the Joint· . F
Secretary, Ministry of Social Welfare who represented the. Govern-'
nient_ of India at the Workshop "affirmed· support of the' Indian -
Governinent to the efforts of the international organisations in pro-·
moting· measures ,to· protect wajfare and interests of.children ·who"
are addpted aborad."
G
But while supporting inter-country adoption, it is necessary to
bear in .mind that the primary object of giving the child in· adoption·
being the welfare of the child, great care has to be exercised· in
permitting the child to be given in 'adoption to foreign parents, .Jest"
the child may be neglected or abandoned by the adoptive parents in
H
816 SUPREMll COURT REPORTS [19&1] 1 s.c.I\,
the foreign country or the adoptive parents may not be able to .pro·
vide to the child a life of moral or material security or the child
may be subjected to moral or sexual abuse or forced labour or ex·
perimentation for medical or other research and may pe placed in
a worse sitnation than that in his own country. The Economic and
Social Council as also the Commission for Social Development have
B therefore tried to evolve social and legal prihci plcs foF the protection
and welfare of children given in inter-country adoption, The Econo-
mic and Social Council by its Resolution 1925 LVIII requested
the Secretary General of the United Nations to convene a group of
Experts with relevant experts with relevant experience of family and
child welfare with the following mandate :
c
"(a) To prepare a draft decleration of social and legal
princip_les relating to adoption and foster placement of
children nationally and internationally, and to review
and appraise the recommendations and guidelines incorpo-
rated in the report of the Secretary General and the rele·
D: ,. vant material submitted by Governments already available
to the Secretary General and the regional commissions.
(b) To draft guidelines for. the use of Governments in
the implementation of the above principles, as well as sug-
gestions for improving procedures within the context of
their social development-including family· and child wel·
fare-programmes.''
Pursuant to this mandate an expert Group meeting was convened in
Geneva in December, 1978 and this Expert Group adopted a "Draft
·Ii'
declaration on social and legal principles relating to the protection
and welfare of children with special reference of foster placem~nt ·
and adoption, nationally and internationally". The Commission ,for
Social Development considered the draft Declilration at its 26th
Session and expressed agreement with its contents and the Econo-
mic and Social Council approved the draft Declaration and request·
G.: ed the General Assembly to consider it in a suitable manner. None
of the parties appearing could give us information whether any
action has been taken by the. General Assembly. B'ut the draft
Declaration is a very important document in as much it lays down
certain social and legal principles which must be observed in case
of inter-country adoption. Some of the relevant principles set out
L,K, PANDBY r. UNION (Bhagwatl, J.) 817
in thC' draft Declaration may be referred to with advantage :
•
"Art. 2. It is recognised that the best child welfare is
good family welfare.
4. When biological family care is unavailable or in·
appropriate, substitute family care should be considered. B
7. Every child has a right to a family. Children who
cannot remain in their biological family should be placed
~··
in foster family or adoption in preference to institutions,
unless the child's particular needs can best be met in a
specialized facility.
c
8. Children for whom institutional care was formerly
regarded as the only option should be placed with families,
both foster and adoptive.
12. The primary purpose of adoption is to provide a
permanent family for a child who cannot be cared for by
his/her biological family.
14. In considering possible .adoption placements,
those responsible for the child should select the most
appropriate environment for the particular child concerned.
15. Sufficient time and adequate counselling should E
be given to the biological parents to enable them to reach
a decision on their child's future, recognizing that it is in
the child's best in.terest to reach this decision as early as
possible.
16. Legislation and services should ensure that the
F
child becomes an integral part of the adoptive family.
17. The. need of adult adoptees to know about their
background should be recognized.
19. Governments should determine the adequacy of
· their national services for children, and recognize those G
children whose needs are not being met by existing services.
For some of these children, inter-country adoption may be·
considered as a suitable means of providing them with a
family.
21, In each countrr. placements §hould bo macle ·a·
818 SUPRBMB COURT REPORTS (1984) 2 S.C.R.
.• I '
A through authorized agencies competent to deal with inter-
/).
·" country adoption services and providing the same safe-·· ·
.guards and standards as are applied in national adoptions.
22. Proxy adoptions are not acceptable, in considera-
tion of the child's legal and social safety.
B 23. No adoption plan should be considered before it
has been established that the child is legally free for adop-
tion and the pertinent documents necessary to complete the .,.
adoption are available. All necessary consents must be in
·.~
a form which is legally valid in both countries. It must be
definitely established that the child will be able to imm'.-
c grate into the country of the prospective adopters and can
subsequently obtain their nationality.
24. In intercountry adoptions, legal validation of the
adoptio11 should be assured in the countries involved.
D 25. The child should at all times have a name, natio-
(j, nality and legal guarC!iati."
Thereafter at the Regional Conference of Asia and Western Pacific
held by the International Council on Social Welfare in Bombay in
i9ll, draft guidelines of procedure concerning inter-country adop- ·
tion were formulated and, as pointed out above, they were approved
at the Workshop held in Brighton, U.K. on 4th September, 1982.
F
·:;
These guidelmes were based on the Draft Declaration and they are
extremely relevant as· they reflect the almost unanimous thinking of
participants from various countries who took part in the Regionat
Conference in Bombay and in the Workshop in Brighton, U.K.
There are quite .a few of these guidelines which are important and
-
which deserve serious consideration by us : ·
"1.4. In all inter-country adoption arrangements, the
welfare of the child shall be prime consideration.
G Biological Parents:
:)
2.2. When the biological parents are known they
shall he offered social work services by professionally quali-
fied workers (or experienced personnel who are supervised
by such qualified workers) before and after the birth of the
JI ohild.
"
L,K. PANDEY 4. UNION (Bhagwati, ii.) 819
2.3. These services shall assist the parents to consi- A
der .all the alternatives for the child's future. Parents shall
not· be subject to any duress in making a decision about
adoption. No commitment to an adoption plan shall be
permitted before the birth of the child. After allowing
parents a reasonable time to reconsider any decision to re-
linquish a child for adoption, the decision should become B
irrevocable. ·6
2.5. If the parents decide to relinquish the child for
adoption, they· shall be helped to understand all the impli-
cations, including the possibility of adoption by foreigners
· and of no further contact with the child. c
2.6. Parents should be encouraged, where possible,
to provide information about the child's background and
development, and their own health.
2.8. It is the responsibility of the appropriate autho-
rity or agency to ensure that when the parents relinquish a D
child for adoption all of the legal requirements are met. •1
2.9. If the parents state a preference for the religious
up-bringing of the child, these wishes shall be respected as
far as possible, but the best interest of the child will be the
paramount consideration. E
2.10. If the parents are not known, the appropriate
authority or agency, in whose care the child has been
placed, shall endeavour to trace the parents and ensure that
the above services are provided, before taking any action
in relation to adoption of the child.
F
The Child:
3.1. · Before any plans are considered for a child to be
adopted by foreigners, the appropriate authority or agency
shall consider all aHernatives for permanent family care
within the child's own country. G
3.2. A child-study report shall be prepared by pro-
fessional workers (or experienced personnel who are super-
vised by such qualified workers) of an appropriate authority '
or agency, to provide information which will form a basis
for the selection of prospe9tive· adopters for the child, H
' '
820 SUPREME COURT REPORTS [1984] 2 s.c.R.
A assist with the child's need to know about his original
family at the appropriate time, and help the adoptive
parents understand the child and have relevant information
about him/her.
33. As far as possible, the child-study report shall
B include the following : ·
3.3.1. Identifying information, supported where pos-
sible by documents.
3.3.2. Information about original parents, including
their health and details of the mother's pregnancy and the
c birth.
3.3.3. Physical, intellectual and emotional develop-
ment.
3.3.4. Health report.
.,'
D 3.3.5. Recent photograph.
3.3.6. Present environment-category of care (Own
home, foster home, institution, etc.) relationships, routines
and habits.
3,3.7. Social Worker's assessment and reasons for
E suggesting inter-country adoption. j
3.4. Brothers and sisters and other children who have ;.
been cared for as siblings should not be separated by adop-
tion placement except for special reasons.
F
3.5. When a decision about an adoption placement
is finalised, adequate time and effort shall be given to pre-
paration of the child in a manner appropriate to his/her
age and level of development. Information about the child's
new country and new home, and counselling shall be pro·
-·-
1
\. ,
vided by a skilled worker.
G 3.5. (a) Before any adoption placement is finalized the
child concerned shall be consulted in a manner appropriate )
to his/her age and level of development.
3.6. When older children are placed for adoption,
.1 the adoptive parents should be encouraged to come to the
.H child's country of ori11in, to meet him/her there, lea~!)
L.K. P~NDBY v. UNION (Bhagwati, J.) 821
personally about his/her. first environment ;ind escort the A
child to its new home.
Adoptive Parents :
4.3. In addition to the usual capacity for adoptive,
parenthood. applicants need to have the capacity to handle
the trans-racial, trans.-cultural and trans-national aspects of· · B
inter-country adoptions.
4.4, A family study re.oort shall be prepared by pro-
fessional worker (oi experienced personnel who are super-
vised by such qualified workers) to indicate the basis on
which the applicants were accepted as prospective adopters.
It should include an assessment of the parents' capacity·to
c
parent a particular type of child and provide relevant in-
formation for other authorities such as Courts.
4.5. The report on the family study, which must be
made in the community where the applicants are residing,
shall include details of the following : D
..l_
4.5.1. Identifying information about_ parents and
other members of the family, including any necessary docu-
mentation.
4.5.2. Emotional and intellectual capacities of pros-
E
pective adopters, and their motivation to adoption.
4.5.3. Relationship (material, family, relatives, friends,
community)
4.5.4. Health.
4.5.5. Accommodation and financial position. F
4.5.6. Employment and other interests.
4 5.7. Religious affiliations and/or attitudes.
·4.5.8. Capacity for adoptive parenthood, and details
of child preferred (age, sex, degree of disability).
G
4.5.9. Support available from relatives. friends, com-
. munity.
4.5.10. Social worker's assessment and details of
adoption authority's approval.
H
822 SUPREME COURT REPORTS [\984) 2 S,C,R:
A 4,5.11. Recent photograph of family.
Adoption A•thorities and Agencies :
5.1. Inter-country adoption arrangements should be
made only through Government adoption authorities (or
B agencies recognised by them) in both sending and receiving
countries. They shall use experienced staff with professio-
nal social work education or experienced personnel super- :--,-
vised by such qualified workers.
5.2. The appropriate authority or agency in the
c child's country should be informed of all proposed inter-
country adoptions and have the opportunity to satisfy itself
that all alternatives in the country have been considered,
.and that inter-country adoption is the optimal choice of
care for the child.
5.3. Before any inter-country adoption plan is consi-
dered, the appropriate authority or agency in the child's
country should be responsible for establishing that the
child is legally free for adoption, and that the necessary
documentation is legally valid in both countries.
5.4. Approval of inter-country adoption applicants is
E a responsibility of the appropriate authorities or agencies
in both sending and receiving countries. An application
to adopt a child shall not be considered by a sending
countrf unless it is forwarded through the appropriate
authority or agency in the receiving._ country.
F 5.5. The appropriate authority or agency in both
countries shall monitor the reimbursement of co,ts involved
in inter-country adoption to prevent profi_teering and traffic
king in children.
5.6. xx xx xx xx
G
5.7. When a child goes to another country to be
adopted, the appropriate authority or agency of the receiv-
ing country shall accept responsibility for supervision of
the placement, and for the provision of progress reports
for the adoption authority or agency in the sending country
H for the period agreed. upon,
L,K. fANDBY v. UNION (Bhagwati, J.) 823
5.8. In cases where the adoption is not to be· finalised A
in the sending country, the adoption authority in the receiv-
ing· country shall ensure that an adoption order is sought
as soon as possible but not later than 2 years after place-
ment. It is the responsibility of the appropriate authority
or agency in the receiving country to inform the appro-
priate autnority or agency in the sending country, of .the B
details of the adoption order when it is granted.
5.8.1. In cases where the adoptioA is to be .finalised
!h·· in tho sending country after placement, it is the responsi-
bility of the appropriate authority or agency fo both the
sending and receiving country to ensure that the adoption c
is finalised as soon as possible.
•
5.9. ·If the placemenfiis·disnipted before the adoption
is finalised, the adoption authority in the receiving country .
shali be responsible for ensuring, with the agreement of 'the D
adoption authority in the sending country that a satis-
.( faciory alternative placement is made with prospective
adoptive parents who are approved by' the adoption autho-
rities of both countries.
Adoption Services ond Communities : E
- 6.1. Appropriate . authorities o;agencies in.receiving
countries shall ensure that there is adequate feedback to the
appropriate authorities or agencies in sending countries,
both in relation to inter·country adoption generally and to
individual children where required.
F
6.2. xx xx xx xx
6.3. The appropriate authorities and agencies in both
sending and receiving countries have a responsibility .for
G
public education in relation to inter-country adoption, to
ensure that when such adoption is appropriate for children,
public attitudes support this. Where public attitude ·is
known to be discriminatory or likely to be hostile on.
grounds of race or colour, the. appropriate authority or
, agency in the sending country should not consider place-
ment of the child,
H
824 SUPREME COURT REPORTS [1984] 2 S.C,R.
A Status of the Child ;
7.L Family; ·-,.·
It is essential that in inter-country adoption
child.is given the same legal status and rights of
inheritence, as if she/he had been born to the
B adoptive parents in marriage.
7.2. Name;
When the legal adoption process is concluded the
child shall have the equivalent of a birth regis-
tration certificate.
c
7.3. Nationality;
When the legal adoption is concluded, the child
shall be granted app<opriate citizenship.
74. xx xx xx xx
D
7.5. Immigration;
Before an inter-country adoption placement with
particular prospective adopters is proposed, the
appropriate authority or agency in the child's
country shall ensiare that there is no hindrance,
E to the child entering the prospective adopters'
country, and that ·travel documents can be ob-
tained at the appropriate time.
We shall examine these provisions of the Draft Declaration and the
draft guidelines of procedure when we proceed to consider and lay
F down the principles and norms which should be followed in inter-
country adoption.
Now it would be convenient at this stage to set out the proce-
dure which is at present being followed for giving a child in adop·
tion to foreign parents. Since there is no statutory enactment in
G our country providing for adoptivn of a child by foreign parents or
laying down the procedure which must be followed in such a case,
resort is bad to the provisions of the Guardians & Wards Act
1890 for the purpose of facilitating such adoption. This Act is an
old·statute enacted for the purpose of providing for appointment of
guardian of the person or property of a minor. Section 4 sub-
H section (5) clause (a) defines the "court" to mean the district court
'
Uc. PANDEY '· UNION (Bhagwati, J.) 825
having jurisdiction to entertain an application under the Act for an A
order appointing or declaring a person to be a guardian and the
expression "district court" is defined in sub-section (4) of section 4
to have the same meaning as assigned · to it in the Code of Civil
Procedure and includes a High Court in the exercise. of its ordinary
original civil jurisdiction. Section 7 sub-section (1) provides that
where the court is satisfied that it is for the welfare of a minor that B
an order should be made appointing a guardian of 'his person or
property or both or declaring a person to be such a guardian, the
court may make an order accordingly and, according to section 8,
such an order shall not be made . except on the application of one
of four categories of persons specified in clauses (a) to (d), one of
them being "the person desirous of being the guardian of the minor" C
and the other being "any relative or friend ·of the minor". Sub·
section (I) of section .9· declares that· if the 'application' is with
respect to the guardianship of the person of the minor-and that is
the kind of application which is availed of for the purpose of inter-
country adoption-it shall be made to the district court having
jurisdiction in the place where the minor ordinarily resides. Then D
follows section.11, sub·section (I) which prescribes that if the court
is satisfied that there is ground for proceeding on the ap~lication,
it shall fix a date for the hearing ·thereof aud cause notice of the
application and or the date fixed for the hearing to be served on the
parents of the minor if they are residing in any State to which the
- Act extends, the person if any named in the petition as having
the custody or possession of the person of the minor, fhe person
proposed in the application to be appointed guardian and any other
person to whom, in the opinion of the court, special notice of the
application should be given. Section 17 provides 'that 1n appoint-
ing guardian of a minor, the court shall be guided by what, consi.•-
E
tently with the law to which the minor is subject, appears in the F
circumstances to be for the welfare of the minor and in considering
what will be for· the welfare of the minor, the .court shall have
regard to the age -sex, and religion of the minor, the character and
.capacity o( the proposed guardian and his nearness of kin to the
minor, the wishes, if any, of a deceased parent and any existing or
previous relations of the proposed guardian with the minor or his G
{
property. The last materi.al section is section 26 which provides ·
that a guardian of the person of a minor appointed by the court
shall not, without the leave of the court by which he was appointed,
remove the ward' from the limits ,of its jurisdiction, except for such
purposes as may be prescribed and the leave to be granted by th'e
u
826 SUPREME COURT REPoRTS . [1982) 2 S.C.R.
A court may be special or general. These are the relevant provisions
' of the Guardians and Wards Act 1890 which have a bearing on the
procedure which is at present· being followed for the purpose of
carrying through intet·country adoption. The foreign parent makes
an application to the court for being appointed guardian of the
person cif the child whom he wishes to take in adoption ,and for
leave of the court to take the child with him to his country on
being appointed such guardian. The procedure to be followed by
the court in disposing of such application is laid down by three
High Courts in the country with a view to protecting the interest
and safeguarding the welfare of the child, but so far .as the rest of
the High Courts are concerned, they do not seem to have taken any
c steps so far in that direction. Since most of the applications by
foreign parents wishing to take a child in adoption in the State of
Maharashtra are made on the original side of the High Court of .
. Bombay that .High Court has issued a notification dated !0th May
1972 incorporating Rule 361-.B in Chapter XX of the Rules of the
High-Court of Bombay (Original Side) 1957 an this newly added
D. . Rule provides inter a/ia as follows :
When a foreigner makes an application for being
appointed as the guard1an of the person or property· of a
minor, the Prothonotary and Senior Master shall .address a
letter to the Secretary of the Indian Council of Social Wel-
E fare, informing him of the presentation of the application
and the date fixed for the hearing thereof-he shall also
inform him that any representation which the Indian
Council of Social Welfare may make in the matter would
be considered by the Court before passing the order on the
application. A copy of the applicat1011 shall be ·forwarded 7
F to the Secretary of the Indian Council of Social Welfare -~'····
I
alon 6 with the Jetter of Prothonotary and Senior Master."
The High Court of Delhi. has also issued instructions on the
same lines to the Courts subordinate to it and these instructions
read as follows :
G
(i) A foreigner desirous' of-being appointed guardian·
a
or the person of minor and praying for leave
to remove the minor to a foreign country, shall
make an application for the purpose in the pres-
cribed form under the Guardians and Wards Act,
H attaching with it three copies of passport size
-~-. -.,_.
L.ic. PANDEY v. ENION (Bhagwati, J.) 827
A
photographs of the minor, duly attested by the
person having custody of the minor at the time ; ·
(ii) If the court is satisfied that there is no ground for
proceedings on the application, it shall fix a day
for the hearing there of and cause notice of the
application and of the date fixed for the hearing B
on the person and in the manner mentioned in
Section 11, Guardians and Wards Act, 1890 as
~··. also to the general public and the Secretary of the
Indian Council of child Welfare and consider their
representation ;
(iii) Every person appointed guardian of the person of
c
a minor shall execute a bond with or without .a
surety or sureties as the court may think fit to
direct and in such sum as the court may fix,
having regard to the welfare of the minor and to
ensure his production in the court if and when so
D
required by the court ;
(iv) On the court making an order for the appointment
of a foreigner guardian of the person of an Indian
minor, a copy of the minor's photograph shall be
.. counter-signed by the Court and issued to the
guardian or joint guardian, as the case may be,
appointed by the court alongwitb the certificate or
guardianship."
E .
The High Court of Gujarat ·has not fra1ned any specific rule
for this purpose like the High Courts of Bombay and Delhi but 'in
a judgment delivered in 1~32· in the case of Rasiklal Chaganlal F
Mehta,(') the· High Court of Gujarat bas maqe the following obser·
vations:
"In order that the Courts cari satisfactorily decide an
intercou11try adoption case against the aforesaid back·
ground and in the light of the above referred gµidelincs, we G
{ consider it necossary to gi1'e certain direction>. In ali such
cases, the Couri should issue notice to the Indian Council
of Social Welfare (175, Dadabbai Naroji Road, Bombay·
(I) AIR 1982 Guj. 193.
ll
828 ~ UPRBME COURT REPORTS (1984j 2 s.c.fl..
A 400001) and seek its assistance. If the Indian Counc.l of
Social Welfare so desires it should be made a party
to the proceedings. If the Indian Councilof Social
W~lfare does not ap.pear, or if it is unable, for
some reason, to render assistance, the Court should issue
notice to an independent, reputed and publicly/o!ficially
B recognised social welfare agency working in. the field and in
that area and request it to render assistance in the matter."
The object of giving notice to the Indian .Council of Social
Welfare or the Indian Council for Child Welfare or any other
independent, reputed and publicly or officially recognised social
welfare agency is obviously to ensure that the application of foreign
c parents for guardianship of the child with a view to its eventual
adoption is properly and carefully scrutinised and evaluated by an
expert body .having experience in the area of child welfare with a 't
view to assisting the Court in coming to the conclusion whether it
will be in the. interest of the child, promotive of its welfare, to be
adopted by the foreign parents making the application or in other
D words, whether such adoption will provide moral and material secu-
rity to the child with an oppor.tunity to grow into the full stature of
its personality in an atmosphere of love and affection and warmth
of a family hearth and home. This procedure which has been
evolved by the High Courts of Bombay, Delhi and Gujarat is, in
our opinion, eminently desirable and it can help . considerably to
E reduce, if not eliminate, the possibility of the child boing adopted
by unsuitable or undesirable parents or being placed in a family
where it may be neglected, maltreated or exploited by the adoptive
parents. We would strongly commend. this procedure for accep-
tance by every court .in the country which has to deal with an appli-
cation by a foreign parenf for appointment of himself as guardian
F of a child with a view to its eveutual adcption. We shall discuss
this matter a little more in detail when we proceed to consider what
p_rinciples and norms should be laid down for inter-country adop-
tion, but, in the meanwhile, proceeding further with the narration
of the procedure followed by the courts in Bombay, Delhi and
Gujarat, we may point out that when notice is issued by the court,
G the Indian Council of Social Welfare or the Indian Council for
Child Welfare or any other recognised social welfare agency to
which notice is issued, prepares what may conveniently be described
as a child study report and submits it to the Court for its considera-
tion. What are the different aspects relating to the child in respect
of which the child study report should give information is a matter
H which we shall presently discuss, but suffice it io state fo~ the time
t..K. PANDEY v. UNION (Bhagwati, J.) 829
being ·that the child study report should contain legal and social A
data in regard to the child as .also an assessment of its behavioural
pattern and its ,intellectual, emotional and physical development.
The Indian Council of Social Welf~re has evolved a standardised
form of the child study report and it has been annexed as Ex. 'C"
to the reply filed in answer . to the notice issued by the Court.
Ordinarily an adoption proposal from a foreign parent is sponsored B
by a social or child welfare agency recognised or licensed . by the
Government ohhe country in which the foreign parents resides and
the application of the foreign parent for appointment as guardian
of the child is accompanied by a home study report prepared by
such social or child welfare agency. The home study report contains
an assessment of the fitness and suitability of the foreign parent c
for taking the child in adoption based on his antecedents, family
background, financial condition, psychological and emotional adapta·
bility and the capacity to look after the child after adoption despite
racial, national and cultural differences, The Indian Council of
Social Welfare has set out in annexure 'B' to the reply filed by it,
guidelines for the preparation of the home study report in regard to D
the foreign parent wishing to take a chiid in adoption, and it i
obvious from these guidlines which we shall discuss a little later,
that the home study report is intended to provide social and legal
facts in regard to the foreign parent with a view to assisting the
-
court in arriving at a proper determination of the question whether
it will be in the interest oft.he child to be given in adoption to such E
foreign parent. The court thus has in most cases where an appli-
cation is made by a foreign parent for being appointed guardian of
a child in the courts in Bombay, Delhi and Gujarat, the ·child study
report as well as the home study report together with other relevant
material in order to enable it to decide whether it will be for the
welfare of the child to be allowed to be adopted by the foreign F
parents and if on a consideration of these reports and material, the
court comes to the.conclusion that it will be for the welfare of the
child, the court makes an order appointing the foreign parent as
gurdian of the child with liberty to him to take the child to his
own country with ~·view to its eventual adoption. Since adoption
in a foreign country is bound to take some time and till then the G
child would continue to be under the guardianship of the foreign
parent by virtue of the order made by the court, the foreign -parent
as guardian would continue to be accountable to the court for the
welfare of the child' and the court therefore takes a bond from him
with or without surety or sureties in such sum as may be thought
.for ensuring its production if and . when required by the court. H
830 SUPRBMB COURT RBPORTS (1984] 2 S C.R.
'
A The foreign parent then takes the child to his own country either
personally or through an escort and the child is then adopted by
the foreign parent according to the law of his country and on such
adoption, the child acquires the same status as a natural born child
with the same rights of inheritance and succession as also the same
nationality as the foreign parent adopting it. This is-broadly the
procedure which is followed in the courts in Bombay, Delhi and
B Gujarat and there can be no doubt that, by and large, this procedure
tends to ensure the welfare of the child, but even so, there are
several aspects of procedure and detail which need to be considered
in order to make sure that the child is placed in the right family
where it will be. able to grow into full maturity of its personality with
c moral and material . security and in an atmosphere of love and
warmth and it would not be subjected to neglect, mal·treatment or
exploitation.
Now one thing is certain that in the absence of a law providing
for adoption of an Indian child by a foreign parent, the only way
in which such adoption can be effectuated is by making it in accor-
D dance with the law of the country in which the foreign parent resides.
But in order ·to enable such adoption to be made in the country of
the foreign parent, it would be necessary for the foreign parent to
take the child to his own country where the procedure for making
the adoption in accordance with the law of that: country can be
followed. However, the child which is an Indian national cannot
E be allowed to be removed. out of India by the foreign parent unless
the foreign parent is appointed guardian of the person of the child
by the Court and is permitted by the Court to take the child to his
'
own country under the provisions of the Guardians and Wards Act
1890. Today, therefore, as the law stands, the only way in which a
foreign parents can take an Indian child in adoption is by making i
F an application to the Court in .which the child ordinarily resides for
being appointed guardian of the person of the child with leave to
;-~
remoye the child out of India and take it to his own country for the
purpose of adopting it in accordance with the law of his country.
We are definitely of the view that such inter-country adoption should
be permitted after exhausting the possibility of adoption within the
country by Indian parents. It has been the experience of a large )
G
. number of social welfare agencies working in the area of adoption
that, by and large, Indian parents are not enthusiastic about taking
a stranger child in adoption. and even if they decide to take such
child in adoption, they prefer to adopt a boy rather than a girl and
they are. wholly averse to adopting a handicapped child, with the
H result that the majority of abandoned, destitute or orphan girls and
I
L.K. PANDBY.d. UNION (Bhagwati, J.) 831
. handicapped children have very little possibility of finding adoptive A
parents within the country and their future lies only in adoption by
foreign parents. But .at the same.time it is necessary to bear in
mind that by reason of the unavailability of children in the develop-
ed countries for adoption, there is a .great demand for adoption of
children from India and consequently there is increasing danger of
ill-equipped and sometimes even undesirable organisations or indi- B
viduals activising themselves· in the field of inter-country adoption
with a view to trafficking in children and sometimes it mav also
_)--. happen that the immediate prospect of transporting the_ child from
"" neglect and abandonment to material comfort and security by plac-
ing· it with a foreigner may lead to other relevant factors such as the
intangible needs of· the· child, its emotional and. psychological c
requirements and possible difficulty of its assimilation and integra-
tion in a foreign family with a different racial and cultural back-
ground, being under-emphasized, if not ignored._ It is therefore
necessary to evolve normative and procedural safeguards for ensuring
that the child goes into the right family which would provide it
warmth and affection of family life and help it to grow and develop D
physically, emotionally, intellectually and spiritually. These safe-
guards we now proceed to examine ..
We may make it clear. at the outset that·we arc not concerned
here with cases of adoption of children living with their biological
parents,. for in such class of ·cases, the biological parents would be E
the best persons to decide whether to,give their child in adoption to
foreign parents. It is only in those cases where.the children sought
to be taken m adoption are destitute or abandoned ·and are Jiving in
social or child welfare centres that it is necessary to consider what
normative and pr.ocedural safeguards seould be forged for protecting
their interest and promoting their welfare. F
Let us first consider what are the requirements which should
be insisted upon so far ar a foreigner wishing to take a child in
adoption is concerned. In the first place, every application from
a foreigner desiring to adopt a chiid must be sponsored by a social
or child welfare agency recognised or licensed by the government
of the country in which the foreigner is resident. No application by
a foreigner for taking a child in adoption should be entertained
directly by any social or welfare agency in India working in the
area cf inter-country adoption or by any institution or centre or
home to which children are committed by the juvenile.court. This
is essential primarily for three reasons. ·
H
832 SUPREME COURT llBi>ORtS [J984J~ S.C.R,
A Firstly, it will help to reduce, if not eliminate altogether the
possibility of profiteering and trafficking in children, because if a
foreigner were allowed to contact directly agencies or individuals in
India for the purpose of obtaining a child in adoption, he might
in his anxiety to secure a child for adoption, be induced or persua-
ded to pay any unconscionable or unreasonable amount which might
B be demanded by the agency or individual procuring the child.
Secondly it would be almost impossible for the court to satisfy
itself that the foreigner who wishes to take the child in adoption
would be suitable as a parent for the child and whether he would
be able to provide a stable and secure family life to the child and
would be able to handle trans-racial, trans-cultural and trans-natio-
c nal problems likely to arise from 'such adoption, because, where
the application for adopting a child has not been sponsored by a
social or child welfare agency in the country of the foreigner, there
would be no proper arid satisfactory home study r~port on which the
court can rely. Thirdly, in such a case, where the application of a
foreigner for taking a child in adoption is ·made directly without the
D intervention of a social or child welfare agency, there would be no
. authority or agency in the country of the foreigner who could be
made responsible for supervising the progress of the child and en-
suring that the child is adopted at the earlist in accordance with
law and grnws up in an atmosphere of warmth and affection with
moral and materia 1 security assured to it. The record shows that
E in every foreign country where children from India are taken in
adoption, there are social and child welfare agencies licensed or
recognised by the government and it would not therefore cause an'y
difficulty hardship or inconvenience if it is insisted that every appli-
cation from a foreigner for taking a child in adoption must be span-
.sored by a social or child welfare agency licensed or recognised or
F recognised by the government of the country in which the foreigner
resides. It is not necessary that there should be only one social or
child welfare agency in the foreign country through which an appli-
cation for adoption of a child may be routed ; there may be more
than one such social or child welfare agencies, but every such social
or child welfare agency must be licensed or recognised by the govern-
G ·ment of the foreign country and the cout should not make an order
for appointment of a foreigner as guardian unless it is satisfied that
the application of the foreigner for adopting a child has been spon-
sored by such social or child welfare agency. The social or child
welfare agency which sponsors the application for taking a child in
adoption must get a home study report prepared by a prpfessional
H
L.K. PANDBd v. UNION (Bhagwatl, J.) 833
worker indicating the basis on which the application cif the foreigner A
for adopting a child has been sponsored by it. The home study
report should broadly include information in regard to the various
matters set out in Annexure 'A' to this judgment though it need
not strictly adhere to the requirements of that ·Annexure and it
should also contain an assessment by the social or child welfare
agency as to whether the foreigner wishing to take a child in adop~ B
tion is fit and suitable and has the capacity to parent a child coming
from a different racial and cultural milieu and whether the child
will be able to fit into the environment of the adoptive family and
the community in which it lives. Every application of a foreigner
for taking a child in adoption must be accompanied by a home study
report and the social or child we1fare agency sponsoring such appli- c
cation should also 'send along with it a recent photograph of the
family, a marriage certificate of the foreigner and his or her spouse
as also a declaration concerning their health together with a certifi-
cate regarding their medical fitness duly certificate by a medical
doctor, a declaration regarding their financial status alongwith _
supporting documents including employer's certificate where appli- D
cable, income·tax assessment orders, bank references and particulars
concerning . the properties owned by them, and also a declaration
stating that they are willing to be appointed guardian of the child .
and undertaking that they would 'adopt the child according to the
law -of their country within a period of not more th'an two years
from the time of arrival of the child in their country and give inti- E
-
mation of such adoption to the court appointing them as guardian
as also to the social or child welfare agency in India processing their
case, they would maintain the child and provide it necessary edu-
cation and up-bringing according to their status and they would also
send to the court as also to the social or child welfare agency in
India reports relating to the progress ofthe child alongwith itnecent F
photograph, the frequency of such progress reports being quarterly
during the first two years and half yearly for the next three years.
The application .of the foreigner must also be accompanied by a
Power of Attorney in favour of an Officer of the social or child
welfare agency in- India which is requested to process the case
and such Power of Attorney should authorise the . Attorney to G
handle the case on behalf of the foreigner in case the foreigner is
n:ot in a position to come to India. The social or child welfare
agency sponsoring the application of the foreigner must also certify
that the foreigner seeking to adopt ii child is permitted to do so
according to the law of his country. These certificates, declarations
a11d documents which must accompany the application of the foreig-
834 SUPREMe couRt REPORTS (1984) 2 s.c.R.
A ner for taking a child in adoption, should be duly, notarised by a
Notary Public whose signature should be duly attested either by an
Officer of the Ministry of External Affairs or Justice or Social Wei·
fare of the country of the foreigner or by an Officer of the Indian
Embassy or High Commission or Consulate in that country. The
0
social or child welfare agency sponsoring the application' of the
B foreigner must also undertake while forwarding the appllcation to
the social or child welfare agency in lndia, that it will ensure adop·
tion of the child by the foreigner according to the law of his country
within a period not exceeding two years and as soon as the adoption
is effected, it will send two certified copies of the adoption order to
the social or child welfare agency in India through which the appli·
C cation for guardianship is processed, so that one copy can be filed
in court and the other can remain with the social or child welfare
agency in India. The social or child welfare agency sponsoring the
application must also agree to send to the concerned social or child
welfare agency in India progress reports in regard to the child,
quarterly during the first year and half yearly for the subsequent year
D or years until the adoption is effected, and it must also undertake
that m case of disruption of the family of the foreigner before adop·
).
ti on can be effected, it will take care of the child and find a suitable
alternative placement for it with the approval of the 'concerned
social or child welfare agency in India and report such alternative
placement to the court handling the guardianship proceedings and
E such information shall be passed on both by the court as also by the
concerned social or child welfare agency in India to the Secretary,
Ministry of Social Welfare, Government of India. The Government
of India shall prepare a list of social or cluld welfare agencies licensed
or recognised for inter-country adoption by the government of each
foreign country" where children from India arc taken in adop,
F tion and this list shall be prepared after getting the necessary infor-
mation from the government of each such foreign country and the
Indian Diplomatic· Mission in that foreigne country. We may
point out that the Swedish Embassy has in Annexure II to the
affidavit filed on its behalf by Ulf Waltre, given names of seven
Swedish organisatiqns or agencies which are authorised by the
G· National Board for Inter-Country Adoption functioning under the
Swedish Ministry of Social Affairs to "mediate" applications for
adoption by Swedish nationals and the ·Indian Council of Social
Welfare has·also in the reply filed by it in answer to the writ 'peti;
tion given a list of government recognised organisatio~s or agencies
dealing in inter-country adoption in foreign countries. It should not
ft therefore be difficult for the Gevernment of India to prepare a list
L.K. PANDEY v. UNION (Bhagwati, J.) 835
'
of social or child welfare agencies licensed or recognised for inter- A
country adoption by the Government in various foreign countries.
We direct the Government of India to prepare such list within six
. months from today and copies of such list shall be supplied by the
· Government of India to. the various High Courts in India as also
to the social or child welfare agencie> operating in India in the area
of inter-country adoption under licence or recognition from the B
Government of India. We may of course make it clear that appli-
cation of foreigners for appointment of themselves as guardians of
children in India with a view to their: eventual ·adoption shall not
be. held up until such list is prepared by the Government of India
but they shall be processed and disposed of in the light of the
·principles and norms iaid down in this judgment. c
We then proceed to consider the position in regard to, biologi-
cal parents of the child proposed to be taken in adoption. What are
'the. safeguards which are required to be provided in so far as bio-
logical parents are concerned ? We may make it clear at the outset
that when we . talk about biological parents, Vie mean botn parents D
.if they are together or the mother or the father if either is alone.
Now it s~ould-be regarded as an elementary requirement that if the
biological parents are known, they should be properly assisted in
making a decision about relinquishing the child for adoption, by the
Institution or centre or Home for Child Care or social or child wel-
fare agency to which the child is being surrendered. Before a dec.ision .
E
is taken by the biological parents to surrender the chikl for adop-
tion, they should be helped to understand all the implications of
adoptions including the possibility of adoption by a foreigner and
they should be told specifically that in case the child is .adopted, it
would not be possible for them to· have any further contact with the
child. The biological parents should not be subjected to any duress
F
in making a decision about reli1>quishment and even after they have
taken a decision to' relinquish ·ihe child. for giving in adoption~ a
further period of about three months should be allowed to them
to reconsider their decision. But once the decision is taken and
not reconsidered within such further time as may beall owed to
them, it must be regarded as irrevocable a11d the procedure for
G
giving the child in adoption to a foreigner can then be initiated
without any further reference to'the biological parents by filing .an
application for appointment of the foreig!'er as guardian of the child.
Thereafter there can be no question of once again consulting the
biological parents whether they wish to give the child in adoption
IJT they want to take i\ back.· It wou\d be most unfair if after a·
tt
836 SUPREME COURT REPORTS . (1984) 2 S.C.R.
A child is approved by a foreigner and expenses are incurred by him
for the purpose of maintenance of the child and some times on
medical assistance and even hospitalisation for the child, the biologi-
cal parents were once again to be consulted for giving them a locus
penitentia to reconsider their decision. B.ut in order to eliminate any
possibility of mischief and to make sure that the child has in fact
B ,heen surrendered by .its biological parents, it is necessary that the
Institution or Centre or Home for Child Care or social or child
welfare agency tO which the child is surrendered by the biological
parents, should take from,the biological parents a document of
·surrender duly signed by the biological parents and attested by at
· least two responsible persons and such document of surrender should
c not only contain the names of the biological parents and ·their
address but also information in regard to the birth of the child and
its background, health and development. If the biological parents
state a preference for the religious upbringing of the child, their
wish should as far as possible be respected, but ultimately the interest
of the child alone should be the sole guiding factor and the biologi-
D cal parents should be informed that the child may be given in 11dop-
. tion even to a foreigner who profe1ses a religion different from that
of the biological parents. This procedure can and must be followed
where the biological parents are known al)d they relinquish the child
for adoption to an Institution or Centre or Home for Child Care or
hospital or social or child welfare agency. But where the child is
E an orphan, destitute or abandoned child and its parents are not
known, the Institution or Centre or Home for Child Care or hospi-
tal or social or child welfare agency in whose care the child has
come, must try to trace the biological parents of the child and if the
biological parents can be traced and it is found that they do not
want to take back the child, then the .same procedure as outlined
F above should as far as possible be followed. But if for any · reason
the biological parents cannot be traced, then there can be no ques- 7
tion of taking their consent or consulting them. It 'may also be
._).·· -
/
pointed out that the biological parents should not be imduced or
encouraged or even be permitted to take a decision in regard to
giving of a child in adoption before the birth of the child or within
G a period of three months from the date of birth. This p_recaution
is necessary because the biological parents must have reasonable
timeafter the birth of the child to take a decision whether to rear
up the child themselves or to relinquish it for adoption and more-
over it may be necessary to allow some time to the child to over-
come any health problems experienced after birth.
tt
L.K. PANDEY v. UNION (Bhagwati, J.) 837
We may now turn to consider the safeguards which should be A
observed in so far as the child proposed to be taken in adoption is
concerned. It was generally Mreed by· all parties appearing before
the Court, whether as interveners or otherwise, that it should not be
open to any and every ageacy or individual to process an application
from a foreigner for taking a child in adoption and such application .
should be processed only through a social. or child welfare agency B
licensed or recognised by the Government of India or the Govern-
ment of the State in which it .is operating, or to put it differently in
the language used by the Indian Council of Social Welfare in the
reply filed by it in answer to the writ petition, "all private adoptions
conducted by unauthorised individuals or agencies . should be
stopped". The Indian Council of Social Welfare and the Tndian c
Council for Child Welfare are clearly two social or child welfare
agencies operating at the national level and recognised by the
Government of India, as appears clearly from theJetter dated 23rd
August, 1980 addressed by the Deputy Secretary to the Government
of India to the Secretary, Government of Kerela, Law Department,
Annexure 'F' to the submissions filed by the Indian Council for Child D
Welfare in response to the writ petition. But apart from these two
recognised social or child welfare agencies functioning at the
national level, there are other social or ·child welfare agencies enga-
ged in child care and welfare and if ,they have good standing and
reputation and are doing commendable work in the area of child
care and welfare, there is no reason why they should not be recog- E
nised by the Government of India or the Government of a State for
the purpose of ·inter-country adoptions. We would direct the
Government of India to consider and decide within a period of three
months from today whether any 'of the institutions or agencies which
have appeared as interveners in the present \Hit petition are engaged
in child care and welfare and if so, whether they deserve to be F
recognised for inter-country adoptions. Of course it would be open
to the Government of India or the Government of a State suo m©tu
or on an application made to it to recognise any other social
or child welfare agency for the purpose of inter-country adoptions,
provided such social or child welfare agency enjoys good reputation
and is known fo~ its work in the field of child care and welfare. G
We would suggest that before taking a decision to recognise any
particular social or child welfare agency for the purpose of inter-
country adoptions, the Government of India or the Government of a
State would do well to examine whether the social or child welfare
agency has proper staff with pr~fessional social work experience,
pecause o\l)erwise it may not be possible for the social or ch.ild wel-
H
838 StIPREMB COURT REPORTS (1984] 2 S.C R.
-
A fare agency to carry out satisfactorily the highly responsible task of
.ensuring proper placement of a child with a foreign adoptive family.
It would also be dseirable not to recognise an organisation or agency I
whcih has been set up only for the purpose of placing children in
adoption : it is only an organisation or agency which is engaged in
the work of child care and welfare which should be regarded as
B eligible for recognition, since iriter-country adoption must be looked
upon not as an independent activity by itself, but as part of child
welfare programme so that it may not tend to degenerate into trad-
mg. The Government of India or the Government of a State recog-
nising any social or child welfare agency for inter-country adoptions
must insist as 'a condition of recognition that the social or child
C welfare agency shall maintain proper accounts which shall be audit-
ed by a chartered accountant at the end of every year and it shall
not charge to the foreigner wishing to adopt a child any amount
in excess of I.hat actually incurred by way of legal or other expen·ses
in connection with the application for appointment of guardian
including such reasonable remuneration or h9norarium for the work
D done and trouble taken in processing, filing and pursuing the appli-
cation as may be fixed by the Court.
Situations may frequently arise where a child may be in the
care of a child welfare institution or centre or social or child welfare
· agency which has not been recognised by the Government. Since an
E application for appointment as guardian can, according to the princi-
ples and norms laid down by us, be processed only by a recognised
social or child welfare agency and none else, ariy unrecognised in-.
stitution, centre or agency which has a child under its care would
have to approach a recognised social •Of child welfare agency if it
desires such child to be given in inter-country adoption, and in that
F event it mnst send witho.ut any· undue delay the name and particulars . ,/
_), -.+
of such child to the recognised social or child welfare agency through
which such child is proposed to be given in inter-country adoption.
r
Every recognised social or. child welfare agency must maintain a
register in which the names and particulars of all children proposed
to be given in inter-country adoption through it must be entered and
G in regard to each such child, the ·recognised social or child welfare
agency must prepare a child study report through a professional )
social worker giving all relevant information in regard to the child
so as to help the foreigner to come to a decision whether or not to
adopt the child and to understand the child, if he decides to adopt
it as also to assist the court in coming to a decision whether it will
be for the welfare of the child to be given in adoption to th~
H
L.K. PANDEY v. UNION (BhagWati, J.) 839
foreigner wishing to adopt it. The child study report should con- A
tain as far as possible information in regard to the following
matters :
"(!) Identifying information, supported where possible by
documents.
B
(2) Information about original parents, including their
health and details of the mother's pregnancy and
birth.
(3) Physical, intellectual and emotional development. . c
(4) Health ·report prepared by a reg\stered medical
practitioner preferably by a paediatrician.
~·
(5) Recent photograph.
· (6) Present environment - category of care {Own D
home, foster home, institution etc.) relationships;
routines and habits.
(7) Social worker's assessment and reasons for suggest·
ing inter· country adoption;"
... The government of India ·should, with the assistance . Of the
Government of the States, prepare a list of recognised social or child
welfare agencies with their names, addresses and other particulars
E
and send such list to the appropriate department of the Goverihhent
of each foreign country where Ihdian children are ordinarily taken
in adoption so that the social dr child welfare agencies licensed ot F
recognised by the Government of such foreign country for °inter·
country adoptions, would know which social or child welfare agency
in India they should approach for processing an· application of its
national for taking an Indian child in adoption. Such list shall
also be sent by the Government ~of India to each High Court with
· a requ\'st to forward it to the district courts within its jurisdiction G
so that the High Courts and the district courts in the country would
know which are the recognised social or child welfare agencies
a
entitled to process an applic'atioh for' appointment of foreigner as
guardian. Of course, it would be desirable if a Central Adoption
Resource Agency is set up by the Government of India with regiO-·
nal .branches at a few centres which are active in inter·coiintty H
140 SUPREME COURT REPORTS [1984] 2 s.c R.
A adoptions. Such Central Adoption Resource Agency can act as a
clearing house of information in regard to children available for
inter-country adoption and all applications by foreigners for taking
Indian children in adoption can then be forwarded by the social or
child welfare agency in the foreign country to such Central Adoption
Resource Agency and the latter can in its turn forward them to one
B
or the other of the recognised social or child welfare agencies in the
country. Every social or child welfare agency taking children under
its care can then be required to send to sucb Central Adoption
Resource Agency the names and particulars of children under its
care who are available for adoption and the names and. parti£ulars
SJf such children can be entered in a register to be maintained by
c
such Central Adoption Resource Agency. But until such Central
·Adoption Resource Agency is set up, an application of a foreigner
for taking an Indian child in adoption must be routed through a
recognised social ot child welfare agency. Now before any such
application from a foreigner is considered, every effort must be made
D by the recognised social or child welfare agency to find placement
for the child by adoption in an Indian family. Whenever any Indian
family approaches a recognised social or child welfare agency for
taking a child in adoption, all facilities must be provided by such
social or child welfare agency to the Indian family to have .a look
at the children available with it for adopt'on and if the Indian
E family wants to see the child study report in respect of any
particular child, child study report must also be made avail-
able to the Indian family in order to enable the Indian
family to decide whether they would take the child in adop- ;;
tion. It is only if no Indian family comes forward to take a child
in adoption within a maximum period of two months that the child
F. may be regarded as available for inter-country adoption, subject
only to one exception, namely, that if the child is handicapped or
is in bad state of health needing urgent medical attention, which is
not possible for the social or child welfare agency ·looking after the
child to provide, tbe recognised social or child welfare agency need
not wait for a period of two months and it can and must take
G immediate step.s for the purpose of giving such child in inter-country
adoption. The recognised social or child welfare agency should, on
receiving an application of a foreigner for adoption through a licen-
sed or recognised social or child welfare agency in a foreign country,
consider which child would be suitable for being given in adoption
to the foreigner and would fit into the environment of his family
and community and send the photograph and child study report
of such child to the forei!lner for the purpose of obtaining . hi~
t.k. PANDEY v. UNION (Bhagwati' j,) 84i
approval to the adoption of such child. · The practice of accepting A
a general approval .of the foreigner to adopt any child should not be
··r- allowed, because it is possible that if the foreigner has not seen the
ph·Aograph of the child and has not studied the child study report
and a child is selected for. him by the recognised social or child
welfare agency in India on the basis of his general approval, he may
on the 2.rrival of the child in his country find that he does not like B
the child or that the child is not suitable in which event the interest
of the child would be seriously prejudiced. The recognised social or
child welfare agency must therefore insist upon approval of a specific
known child and once that approval is obtained, the recognised
social or child welfare agency should immediately without any undue
delay proceed to make an application for appointment of the foreig· c
ner as guardian of the chiid. Such application would have to be
made in the court within whose jurisdiction the child ordinarily
. _Jr'- resides and it must be accompanied by copies of the h!)me study
report, the child study report and other certificates and documents
forwarded by the social or child welfare agency sponsoring the
application of.the foreigner for taking the child in adoption. D
.( Before we proceed to consider what procedure should be
followed by the court in dealing with an application for appointment
of a foreigner as guardian of a child, we may deal with ·a point of·
doubt which was raised before us, namely, whether the social or child
welfare agency which is looking after the child should be entitled to E
receive from the foreigner wishing to take the child in adoption any
amount in respect of maintenance of the child or its medical expen-
ses. We were told that .there are instances where large amounts
are demanded by so called social or child welfare agencies or indi·
viduals in consideration of giving a child in adoption and often this
is done under the label of maintenance charges and medical expenses F
supposed to have been incurred for the child. This is a pernicious
practice which is really nothing short of trafficking in children and .
it is absolutely necessary to put an end to it by introducing adequate
safeguards. There can be no doubt that if an application Of a
a
foreigner for taking child in adoption is required to be routed
. through a recognised social or child welfare agency and the necessary G
steps for the purpose of securing appointment of the foreigner as
guardian of the child have also to be ttken on\y through a reognised
social or child welfare agency, the possibility of any so called social
or child welfare agency .or individual trafficking in children by
demanding exhorbitant amounts from prospective adoptive parents
under the guise of maintenance charges and medical expenses or
H
842 SUPREME COURT REPORTS (1984] 2 s.c.tl..
A otherwise, would be almost eliminated. But, at the same time, it
would not he fair to S)lggest that the social or child welfare agency
which is looking after the child should not be entitled to receive
any amount from the prospective adoptive parent, when maintenance
and medical expenses in connec:ion with the child are actually
incurred by such social or child welfare agency. M~ny of the social
B or·child welfare agencies running homes for children have little
financial resources of their own and have to depend largely on volun·
tary donations and therefore if any maintenance or medical expenses
are incurred by them on a child, there is no reason why they should
not be entitled to receive reimbursement of such maintenance and
m_edical expenses from the foreigner taking the- child in adoption.
c We would therefore direct that the social or child welfare agency
which is looking after the child selected by a prospective adoptive
parent, _may legitimately receive from such prospective adoptive
parent maintenance expenses at a rate not exceeding Rs. 60 per
day (this outer limit being subject to revision by the Ministry of
Social Welfare, Government of India from time to time) from the
D date of selection of the child by him until the date the child leaves
for going to its new home as also medical expenses including hospi-
).
talisation charges, if any, actually incurred by such social or child
welfare agency for the child. But the claim for payment of such
maintenance charges and medical cxponses shall be rnbrnitted to the
prospective adoptive parent through the recognised social or child
E
welfare agency which has processed the application for guardianship
and payment in respect of such claim shall not be received directly
by the social or child welfare agency making the claim but shall
be paid only through the recognised social or child welfare 2gency.
This procedure will to a large extent elim;_nate trafficking in children
F for money or benefits in kind and we would therefor< direct that
this procedure shall be followed in ihe future. But while giving
this direction, we may make it clear that what we have said should
not be interpreted as in any way preventing a foreigner from making
voluntary donation to any social or child welfare agency but no
such donation from a prospective adoptive parent shall be received
G until after the child has reached the country of its prospective
adoptive parent.
It is also necessary to point out that the recognised social or
child welfare agency through which an application of a foreigner
for taking a child in adoption is routed must, before offering a child
in adoption, make sure_ that the child is free to be adopted. Where the·
H parents have relinquished the child for adoption and there_ is a docu-
l..IC. PANDEY v. UNION (Bhagwati, J.) 843
ment of surrender, the child must obviously be taken to be free for A
adoption. So also where a child is an otphan or destitute or
abandoned child and it has not been possible by the concerned
social or child welfare agency to trace its parents or where the child
is committed by a juvenile court to an institution, centre or home
for committed childre~ and is .declared t_o.be a destitute by the
juvenile court, it must be regarded as free for adoption. The recog- B
nised social or child welfare agency must place sufficient material
. before the court to satisfy it that the child is legally available for
rhe adoption. It is also necessary that the recognised welfare agency
must satisfy itself, firstly, that there is no impediment in the way of
the child entering the country of the prospective adoptive parent ;
secondly, that the travel documents for the child can be obtained at
c
the appropriate time and lastly, that the law of the country of the
prospective adoptive parent permits legal adoption of the child
and that no such legal 'adoption being concluded, the child would
acquire the same legal status and rights d inheritance as a natural
born child and would be granted citizenship in the country of adop- D
tion and it should file along with the application for guardianship,
a certificate reciting such satisfaction.
We may also at this stage· refer to one other question that
was raised before us, namely, whether a child under the care of a
social or child welfare agency or hospital or orphanage in one State E
can be brought to another State by a social or child welfare agency
... for t.hc purpose of being given in adoption and an application for
appointment. of a guardian of such child can be made in the court
of the latter State. This question was debated 'before us in view of
the judgment given by Justice Lentin of the Bombay High Court
on 22nd July, 1982 in Miscellaneous Petition No. 178 o'f 19&2 and F
other allied petitions. We agree with Justice Lentin that the
. practice of social or child welfare agencies or individuals going to
different States for the purpose. of collecting children for being
given in inter-country adoption is likely to lead to considerable
abuse, because it is possible that such social or child welfare agencies
or individuals may, by offering· monetary inducement, persuade G
indigent parents to part with their children and then give the children
to foreigners in adoption by demanding a higher price, which the
foreigners in their anxiety to secure a child for adoption may be
willing to pay. But we ·do not think that if a child is relinquished
by its biological parents or is an orphan or destitute or abandoned
child in its parent State, there should be any objection to a social
or child welfare agency taking the child to another State, even if H
844 . SUPREME COURT REPoRts [1984] 2 s.c.tt .
A the object be to give it in adoption, provided there are sufficient
safeguards to ensure that such social or child welfare agency does
not indulge many mal·practice. Since we are directing that every
application of a foreigner for taking a child in adoption shall be
routed only through a recognised social or .child welfare agency and
an application for appointment of the foreigner as guardian of the
B child shall be made to the court only through such recognised
social or child welfare agency, there would hardly be any scope for
a social or child welfare agency or individual who brings a child
from another State for the purpose of being given in adoption to
indulge in trafficking and such a possibility would be reduced to
almost nil. Moreover before proposing a child for adoption, the
c recognised social or child welfare agency must satisfy itse If that the
child has either been voluntarily relinquished by its biological
parents without monetary inducement or is an orphan or destitute
or abandoned child and for this purpose, the recognised social
or child welfare agency may require the agency or individual
D who has the care and custody of the child to state on oath
as to how he came by the child and may also, if it thinks fit,
verify such statement, by directly enquiring from the biological )
parents or from the child care centre or hospital or orphanage from
which the child is taken. Thi.s will considerably reduce the possi-
bility of abuse while at the same time facilitating placement of children
E deprived of family love and care in smaller towns and rural areas.
We do noi see any reason why in cases of this kind where a child
·relinquished by its biological parents or an orphan or destitute or
abandoned child is brought by an agency or individual from one
State to another, it should not be possible to apply for guardian'
ship of the child in the court of the latter State, because the. child
not having any permanent place of residence, would then be ordi-
F
narily resident in the place where it is in the care and custody of
such agency or .individual. But, quite apart from such· cases, we
are of the view· that in all cases where a child is proposed to be
given in adoption, enquiries regarding biological parents, whether
they are traceable or not and if traceable, whether they have volun-
tarily relinquished the child and if not, whether they wish to take the
G child back, should be completed before the child is offered for adop-
tion and thereafter no attempt should be made to trace or contact
the biological parents, This would obviate the possibility of an
ugly and unpleasant situation of biological parents coming forward
to claim the child after it has been given to a foreigner in adoption.
It is also necessary while considering placement of a child in adop-
H tion to bear in mind that brothers and sisters or children who have
t.k. PANDEY v. tJNION <iJhagwali, J.) 845
been brought up as siblings should not be separated· except for
special reasons and as soon as a decision to give a child in adoption
to a foreigner is finalised, the recognised social or child welfare
agency must if the ·child has reached the age of understanding, take
steps to ensure that the child is given proper orientation and is prepar-
ed for going to its new home in a new country so that the assimilation
B
of the child to the new environment is facilitated.
·we mdst emphasize strongly that the ·entire procedure which
we have indicated above including preparation of child study report,
making of necessary enquiries and taking of requisite steps leading
upto the filing of an application for guardianship of the ·child pro- c
posed to be given in adoption, must be completed expeditiously so
that the child does not have to remain in the care and custody of a
.. social or child welfare agency without the warmth and affection of
family life, longer than is absolutely necessary .
We may also point out that if a child is to be given in inter-
D
country adoption, it would be desirable that it is given in such
adoption as far as po;sible before it completes the age of 3 years.
The reason is that if a child is adopted before it attains the age of
understanding, it is always easier for it to get assimilated and inte-
grated in the new environment in which it may find itself on being
adopted by a foreign parent. Comparatively it may be some what
E
difficult for a grown up child to get acclamatized to new surround-
... ings· in a different land and some times a problem may also
arise whether foreign adoptive parents would be able to win the love
and affection of such grown up child. But we make it clear that we
say this, we do not wish to suggest for a moment that children above
the age of three years should not be given in inter-country adoption. F
There can be no hard and fast rule in this connection. Even child-
ren between the ages of 3 and 7 years may be able to assimilate
themselves in the new surroundings without any difficulty and there
is no reason why they should be denied the benefit of.family warmth
and affection in the home of foreign parents, merely because they
are past the age of 3 years. We would suggest that even children
G
above the age of 7 years may be given in inter-country adoption but
we would recommend that in such cases, their wishes may be ascer-
( tained if they are in a position ·to indicate any preference. The
statistics placed before us sh6w that even children past the age of
·7 years have been happily· integrated in the family of their foreign
adoptive parents ..
H
S46 SUPREME COURT REPORTS i!984) 2 SC.R.
v Lastly, we come to the procedure to be followed by the court
when an adp!ication for guardianship of a child is made to it.
Section ll of the Guardians and Wards Act, 1890 provides for
notice of the application to be issued to various persons including
the parents of the child if they.arc residing in any State to which the
Act extends. But. we are definitely of the view that no notice under
B this section should be issued to the biological parents of the child,
since it .would create considerable amount of eml;)arrassment and hard
ship if the biological parents were then to come forward and oppose
the application of the prospective adoptive parent for guardianship
of the child. Moreover, the biological parents would then come to
know who is the person taking the child in adoption and with this
c knowledge they .would at any .time be able to trace the whereabouts
of the child and they may try to contact the child resulting in emo-
tional and psychological disturbance for the child which might affect
his future happiness. The possibility also cannot be ruled'out that
if the biological parents know who are the adoptive parents they may
try to extort money from the adoptive parents. It is therefore abso-
D
lutely essential that the biological parents should not have any
opportunity of knowing who are the adoptive parents taking the
)
child in adoption and therefore notice of the application for
guardianship should not be given to the biological parents. We
whould direct that for the same reasons notice of the application for
E
guardianship should also not be published in any newspaper. Sec•
tion 11. of the Act empowers the courno serve notice of the appli-
cation for guardianship on any other person to whom, in the opi-
nion of the court, special notice of the application should be given
and in exercise of this power the court should, before entertaining
an application for guardianship, give notice to the Indian Council of
Child Welfare or the Indian Council for Social Welfare or any of
F
its branches for scrutiny of the application with a view to ensuring
that it will be for the welfare of the child to be given in adoption to
the foreigner making the application for guardianship. The Indian
Council of Social Welfare or the Indian Council of Child Welfare to
which n~tice is issued by the court would have to scrutinise the
application for guardianship made on behalf of the foreigner wish-
G ing to take the child in adoption and after examining the home
;tudy report, the child study report as also documents and certi-
ficates forwarded by the sponsoring social or child welfare agency and
making necessary enquiries, it must make its representation to the
court so that the C01lft may be able to satisfy itself whether t.he
principles and norms as also the procedure laid down by us in this
H judgment have been observed and followed, whether the foreigner
t.k. PANDEY v. UNION (Bhagwati, J.) 841
will be a suitable adoptive parent for the child and the child will he A
able to integrate and assimilate itself in the family and community.
of the foreigner and will be· able to get warmth "nd affection of
family life as also moral and material stability and security and
0
wh<ther it will be in the.interest of the child to be taken in adop-
tion by the foreigner. If the court i.s satisfied, then ·and then only
it will make an order appointing the foreigner as guardian of .the B
child and permitting him to remove the child to his own country
with a view to eventual adoption. The court will also introduce a
condition in. the order that the foreigner who is appointed guardian
shall make proper provision by way of deposit or bond or otherwise
to enable the child to be repatriated to India should it become
necessary for and reason. We may point out 1hat such a provision
c
. is to be found in clause 24 of the Adoption of Children Bill No. 208
of 1980 and in fact the practice of taking a bond from the foreigner
who is appointed guardian of the child is being foloweld by the
courts in Delhi as a result of practice instructions issued by the
High Court of Delhi. The order will also include a condition that
the foreigner who is appointed guardian shall submit to the Court D
as also to the Social or Child Welfare Agency processing the appli-
cation for guardianship, progress reports of the child along with a
recent photograph quarterly during the first two years and half yearly
for the next three years. The court may also while making the order
permit the social or chi.Id welfare agency which has taken care of
the child pending its selection for adoption to receive such amount E
as the Court thinks fit from the foreigner who is appointed guardian
of such child. The order appointing guardian shall carry, attached
to it, a photograph of the child duly counter-signed by an officer of
the court. This entire procedure shall be completed by the court
cxpediticusly and as far as possible within a period of. two months
fro.m the date of filing of the application for guardianship of the F
child. The proceedings on the application for guardianship should
be held by the Court in camera and they should be regarded as
confidential and as soon as an order is made on the"appl;cation for
guardianship the entire proceedings including the papers and docu-
ments should be sealed. When an order appointing guardian of a
child is made by the court, immediate intimation of the same shall G
be given to the Ministry of Social Welfare, Government of India as
..{ also to the Ministry of· Social Welfare of the Government of the
State in which the court is situate and copies of such order shall
also be forwarded to the two respective ministries of Social Welfare.
The Ministry of Social Welfare, Government of India shall maintain
a register containing names and other particulars of the children in
SUPREME COURT REPORRS il984j 2 s.c.1.t
A respect of whom orders for appointment of guardian have been made
as also names, addresses and other particulars of the prospective adop-
tive parents who have been appointed such guardians and who have
been permitted to take away the children for the purpose of •dop-
tion. The Government of India will also send to the Indian Embassy
or High Commission in the country of the prospective adoptive parents
B from time to time the names, addresses and other particulars of such
prospective adoptive parents together with particulal'S of the children
taken by them and requesting the Embassy or High Commission to +
maintain an unobtrusive watch over the welfare and progress of such
children in order to safeguard against any possible mal-treatment, ;
--\__
exploitation or use for ulterior purposes and to immediately report
c any instance of mal-treatment, negligence or exploitation to the
Government of India for suitable action.
1
We may add even at the cost of repeatition that the biological
parents of a child taken in adoption should not under any circum-
stances be able to know who are the adoptive parents of the child nor
D should they have any access to the home study report or the child
study report or the other papers and proceedings in the application
for guardianship of the child. The foreign parents who have taken )
a child in adoption would normally have the child study report with
them before they select the child for adoption and in case they do
not have the child study report, the same should be supplied to them
E by the rec0gnised social or child welfare agency processing the
application for guardianship and from the child study report, they
would be able to gather information as to who are the biological
parents of the child, if the biological parents are known. There
can be no objection in furnishing to the foreign adoptive parents
particulars in regard to the biological parents of the child taken in
F adoption, but it should be made clear that it would be entirly at the
discretion of the foreign adoptive parents whether and if so when,
to inform the child about its biological parents. Once a child is
taken in adoption by a foreigner and the child grows up in the
surroundings of the country of adoption and becomes a part of the
society of that country, it may not be desirable to give information
G to the child abcut its biological parents whilst it is young, as that
might have the effect of exciting his curiosity to meet its biological
parents resulting in unsettling effect on its mind. But if after attain-
ing the age of maturity, the child w,ants to know about its biological
parents, there may not be any serious objection to the giving of such
information to the child because after the child attains maturity, it
H is not likely to be easily affected by such information and in such a
L.K. PANDEY v. UNION <Bhagwati, J.) 849
case,. the foreign adoptive parents may, in exercise of their discre· A
tion, furnish such information to the child if they so think fit.
The•e are the principles and norms which must be observed
and the procedure which must be followed in giving a child in adop-
tion to foreign parents. If these principles and norms are observed
and this procedure is followed, we have no doubt that the abuses to
B
which inter-country adoptions, if allowed without any safeguards,
may lend themselves would be considerably reduced, if not elimi-
nated and the welfare of the child would be protected and it would
be able to find a new home where it can grow in an atmosphere of
warmth and affection of family life with full opportunities for physical
intellectual and spiritual development. We may point out that the c
adoption of children by foreign parents need not wait until social or
child welfare agencies are recognised by the Government as directed
in this ·order, but pending recognition of social or child welfare
agencies for the purpose ' of inter·-country adoptions, which inter-
regnum, we hope; will not last for a period of more than two months,
any social or child welfare agency. having the care and custody of a D
child may b.e permitted to process an application of a foreigner, but
barring this departure the rest of the procedure laid down by us shall
be followed wholly and the principles and norms enunciated by us in
this Judgment shall be observed in giving a child in inter-country
adoption.
E
The writ pettition shall stand disposed of in these terms.
Copies of this 'order shall be sent immediately to the Ministry of
Social Welfare of the Government of India and the Ministry of
Social Welfare of each of the State Governments as also to all the
High Courts in the country and to the Indian Council of Social
Welfare and the Indian Council of Child Welfare. We would direct F
that copies of this Order shall also be supplied to the Embassies and
Diplomatic Missions of Norway, Sweden, France, Federal Republic of
· Germany and the United States of America and the High Commis-
sions of Canada and Australia for their informations si,nce the
statistics show that these are the countries where Indian children are
taken in adoption. G
{
S.R.
850 SUPRBMB COURT REPORTS [1984} 2 S.C.R.
A
ANNEXURE-'A'
B
1. Source of Referral. •
~· Nu~ber of single and joint interviews.
3. Personality of husband and wife.
c
4. Health details such as clinical tests, heart condition, past
illnesses etc. (medical certificates required, sterility certi-
ficate required, if applicable), ·
I
5. Social status and family background.
D
6. Nature and Adjustment with occupation. ·
)
7. Relationship with community.
8. Description of home.
E
9. Accommodation for the child.
JO. Sch<>oling facilities.' ::
11. Amenities in the home.
F 12. Standard of living as it appears in the home.
13. Type of neighbourhood.
14. Current relationship between husband and wife.
G 15. (a) Current relationship between parents and children
(if any children).
(b) Development of already adopted children (if any) and
their acceptance of the child to be adopted.
16. Current relati~nship between the couple and the members
of each other's families,
L.K. PANDEY v. UNION <Bhagwati, J.) 851
17, If the wife is working; will she be able to give up the job? A
18. If she. cannot leave the job, what arrangements will she
make to look after the child ?
19. Is adoption considered because of sterility of one of the
maritial partners ? B
+ 20. If not, can they eventually have children of their own ?
21. If a child is born to them, how will they treat the adopted
child?
c
22. If the couple already has children how wiJI these children
react to an adopted child ?
23. Important social and psychological experiences which
. have had a bearing on their desire. to adopt a child.
24. Reasons for wanting to adopt an Indian child .
(
.
25. Attitude of grand-parents'. and relatives towards the
adoption.
26. Attitude of relatives, friends, community and neighbour- E
hood towards ·adoption of an Indian child.
27. Anticipated plans for the adopted child.
28. Can the child be adqpted according to the adoptio~ law
in the adoptive parents country? Have they obtained F
the necessary permission to adopt ? (Statement of permis-
sion required.)
29. Do the adoptive parents know any one who adopted a
child from their own country or ariother country ? Who
are they ? From where did they fail. to get a child from G
that source ?
30. Did the couple apply for a child from any other source ?
If yes, which source ?
·31. What type of child is the couple interested in ? (sex, age,
and for what reasons.) ff
. 852 SUPREME COURT REPORTS [!984] 2 S.C R•
).
A 32. Worker's recommendation concerning the family and the
type of child whkh would best fit into this home.
""'+.
33. Name and address of the agency conducting the home
B study. Name of social worker, qualification of social
worker.
34. Name of agency responsible for post placement,. super- •
c vision and follow up.
Y--";;
).
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